author: SHANNON, Justice.

text:
    Jerry SADLER, Appellant, v. Jon NEWTON et al., Appellees.
    No. 12519.
    Coürt of Civil Appeals of Texas, Austin.
    Sept. 16, 1976.

      Jerry Sadler, Houston, for appellant.
    Shannon H. Ratliff, McGinnis, Lochridge & Kilgore, Austin, for Jon Newton.
    John L. Hill, Atty. Gen., David M. Kendall, Jr., First Asst. Atty. Gen., Austin, for Mark White, Secretary of State.
   SHANNON, Justice.

This appeal arises from the selection of appellee, Jon Newton, as the Democratic nominee for the office of Railroad Commissioner in the June, 1976, runoff primary. Appellant, Jerry Sadler, is the defeated candidate. Other appellees are the Secretary of State and officials of the State Democratic Executive Committee.

In the runoff primary Newton received 541,444 votes and Sadler received 272,350 votes. Thereafter, Sadler filed suit in district court of Travis County seeking to enjoin the Secretary of State and Democratic party officials from certifying Newton as the party’s nominee. Sadler also prayed that his name be certified by those officials as the party’s nominee for the office of Railroad Commissioner.

Sadler pleaded several grounds for suit among which was that Newton was ineligible by virtue of Tex.Const. art. Ill § 18. Section 18 provides, in general, that a member of the Legislature, during the term for which he was elected, is not eligible for a State office for which the salary has been increased during that term. Section 18 provides further that the fact that the term of office of members of the Legislature does not end “. . . precisely on the last day of December but extends a few days into January of the succeeding year shall be considered as de minimis, and the ineligibility herein created shall terminate on the last day of December of the last full calendar year of the term for which he was elected.” In that connection Newton, as a member of the 64th Legislature, voted for the appropriations bill, which among other things, increased the salary of the office of Railroad Commissioner.

Sadler did not plead any ground which would alter the tabulation of the votes.

Appellees pleaded, among other things, that Sadler, as a defeated candidate, did not have standing to file suit under art. 1.07 or any other provision of the Texas Election Code.

After trial, the district court entered judgment denying all relief requested by Sadler. In its conclusions of law the court concluded inter alia that Sadler, as a defeated candidate, was without standing to bring suit under art. 1.07 or any other provision of the Texas Election Code. We think the district court was correct.

Sadler claims that art. 1.07 gives him standing to sue. Article 1.07 provides that the district court shall have authority to issue writs of injunction “. . .at the suit of any interested party, or of any voter . ” to enforce articles 1.05 and 1.06. Articles 1.05 and 1.06 are concerned with a candidate’s ineligibility for office. The predecessor of art. 1.07 was Tex.Rev.Civ. Stat.Ann. art. 2929. The provisions in art. 1.07 and art. 2929, which are at issue in this appeal, are the same.

In Allen v. Fisher, 118 Tex. 38, 9 S.W.2d 731 (1928), the Commission of Appeals, construing art. 2929, held that a defeated candidate did not have standing to enjoin the certification of a nominee on the basis of the nominee’s ineligibility. In that case, Allen, the defeated candidate for the Democratic nomination for district attorney, filed suit seeking to enjoin Democratic party officials and others from certifying Braly as the party’s nominee on the basis of Braly’s ineligibility to serve.

In answer to a certified question from the Court of Civil Appeals, Judge Harvey in Allen v. Fisher, supra, wrote:

“Under the provisions of article 3102 of the statutes, no candidate for the office of district attorney is entitled to have his name go on the official ballot at the general election in November, as the nominee of the Democratic party, unless, in the primary election held by that party, he receives a majority of the votes cast for all the candidates for said nomination. The allegations of the plaintiff’s petition show that the plaintiff, as candidate for the nomination for district attorney, did not receive such a majority in either the July or the August primary election. Regardless, therefore, of whether Braly is eligible or not, the plaintiff cannot be declared the Democratic nominee for that office. For, notwithstanding a candidate be ineligible to the office he seeks, and thereby disqualified to be nominated therefor, and is known by the voters to be so, the votes cast for him must be taken into account in determining whether or not his opponent has received a majority of the votes cast. McCrary on Elections (4th Ed.) § 330; 20 C.J. p. 207, and authorities cited in footnote 43.
“The petition therefore fails to show that the plaintiff has a legal right, distinct from the general public of which he is a member, which will be affected by the certification of Braly as the Democratic nominee for district attorney, or by the printing of his name, as such, on the official ballot at the general election in November. The plaintiff, as an individual, is not shown to have a justiciable interest in the matter. He therefore is not entitled to maintain this suit unless authorized to do so under that provision of article 2929 of the statutes now to be noticed. A portion of that article provides in effect that the district court shall have authority to issue writs of injunction at the suit of ‘any voter,’ to restrain the placing of the name of an ineligible candidate upon the official ballot at any general or special election. Under the facts of this case, and though Braly be ineligible as alleged, the certification of his name as the Democratic nominee, and the placing of his name on the ballot at the general election, are matters of public concern exclusively. Such being the case, any suit in respect of those matters must be prosecuted by the state. Staples v. State, 112 Tex. 61, 245 S.W. 639. Whatever be the true import of the statutory provision just referred to, that provision cannot have effect to invest the plaintiff, simply because he is a voter, with the authority to maintain this suit. The Constitution does not permit this to be done. It is said in the case just cited that:
‘It is necessary for the state to be a party where the action is for the benefit of the public at large, though growing out of a party primary election. The statute cannot confer a right upon private individuals to act for all where it is shown they have no interest different from all others.’
“The Constitution provides that the county attorney shall represent the state in all cases in the district court. By other constitutional provisions the Legislature is authorized to impose that duty on the Attorney General, and, in prescribed circumstances, upon the district attorney. See State Constitution, art. 5, § 21; art. 4, § 22. These constitutional provisions mark the limits of legislative authority to prescribe who shall represent the state and control its interests in a lawsuit in the district court. The Legislature is impliedly restrained from conferring such duty and responsibility on the individual citizen. Maud v. Terrell, 109 Tex. 97, 200 5.W. 375. The plaintiff therefore has no authority to maintain this suit, as a voter, independently of a public official who is properly clothed with that authority.” •

Later opinions of the Courts of Civil Appeals have recognized and followed, as we do, Allen v. Fisher, supra. Oser v. Cullen, 435 S.W.2d 896 (Tex.Civ.App.1968, writ dism’d), Pena v. Montalvo, 233 S.W.2d 162 (Tex.Civ.App.1950, no writ), Kamas v. Stepan, 197 S.W.2d 193 (Tex.Civ.App.1946, no writ), Rosette v. Reyna, 196 S.W.2d 658 (Tex.Civ.App.1946, no writ).

Our construction of art. 1.07 is also supported by the fact that the statute was reenacted by the Legislature in 1967 without any substantial change of verbiage. Where a statute, which has been construed by the Supreme Court, is reenacted without any substantial change of verbiage, the statute will continue to receive the same construction. Texas Employers’ Insurance Association v. Holmes, 145 Tex. 158, 196 S.W.2d 390 (1946).

The judgment is affirmed. Motion for rehearing will not be entertained.

PHILLIPS, C. J., not participating.


source: Caselaw Access Project

author: BISSETT, Justice.

license: Public Domain

text:
    David Clinton HATTON, Appellant, v. Carmen G. GONZALEZ, Appellee.
    No. 1103.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 16, 1976.
    A. Deniz Tor, Tinker, Haas & Bradshaw, Corpus Christi, for appellant.
    Fred C. Auforth, Auforth, Nebrat, Keas & McCrury, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This is an appeal from a judgment nihil dicit which was rendered in favor of Carmen G. Gonzalez, plaintiff in the court below. Suit was filed on February 28,1974 to recover damages sustained in a rear-end collision on October 12, 1973, when plaintiff’s automobile was struck from the rear by an automobile that was then being driven by David Clinton Hatton. The defendant, David Clinton Hatton, filed a general denial and a cross-action. It was alleged in the cross-action that the collision “was caused by the failure of Plaintiff and Cross-Defendant to use ordinary care in the operation of her vehicle”, which proximately caused the collision and damage to defendant’s vehicle.

The case was regularly set for trial “for the week of October 6,1975”. The case was called for trial on that date. Plaintiff and her counsel appeared and announced ready. Neither defendant nor his attorney appeared. Whereupon, the case proceeded to trial before the court, no jury having been demanded by anyone. At the close of plaintiff’s testimony, the trial judge announced that he was rendering judgment for the plaintiff in the amount of $593.62 and was denying any relief to defendant under his cross-action. Formal judgment to that effect was signed on October 9, 1975.

Defendant timely filed a motion for new trial, which, after a hearing thereon, was overruled by the trial court. Defendant has perfected an appeal to this Court. In a single point of error, it is asserted:

“The trial court erred in failing to grant a new trial because Defendant’s amended motion for new trial, the supporting affidavits, and the evidence adduced at the hearing thereof (a) established that his failure to appear was not intentional or the result of conscious indifference but was the result of a mistake or accident, (b) set up a meritorious defense, and (c) because the motion was filed and heard at a time when the granting of such motion would occasion no delay or cause injury to the Plaintiff.”

Findings of fact and conclusions of law were filed. Included therein, are findings: 1) defendant’s attorney was given “proper written notice” that the case was set for trial on October 6, 1975; 2) that no member of the law firm that was representing defendant in any manner communicated with the court prior to October 6, 1975, and advised the court that no member of the firm could be present at the trial that was set for October 6, 1975; 3) that no member of the firm that represented defendant appeared and answered either: a) “the pretrial docket call of this cause two weeks prior to its trial date”, or b) “the trial docket call on the Friday prior to the trial”; 4) no attorney for defendant filed a motion for continuance or advised the court of his “unavailability” for trial prior to October 6, 1975; and, 5) that the failure of the attorney to appear for trial at the appointed time was not due to accident or mistake.

The court concluded: 1) the failure of the attorney to appear at the trial was: a) intentional, and b) a result of conscious indifference on his part; and 2) the motion for new trial did not “establish prima facie that the Defendant had a meritorious defense”.

Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (Tex.Comm’n App. 1939, opinion adopted) laid down the rule:

“. . .A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.

That rule applies to judgments nihil dicit as well as to default judgments. Strode v. Silverman, 217 S.W.2d 454 (Tex.Civ.App.-Waco, 1949, writ ref’d).

The rule stated in Craddock was restated and clarified by the Supreme Court in Ivy v. Carrell, 407 S.W.2d 212 (Tex.Sup.1966). In construing the requirement that defaulting or absent defendant set up a meritorious defense, the Court said:

“. . . This does not mean that the motion (for new trial) should be granted if it merely alleges that the defendant ‘has a meritorious defense.’ The motion must allege facts which in law would constitute a defense to the cause of action asserted by the plaintiff, and must be supported by affidavits or other evidence proving prima facie that the defendant has such meritorious defense. . . .” (emphasis by the Supreme Court)

The only allegations contained in the amended motion for new trial are:

“I
The absence of Defendant’s attorney at the trial of this cause was not due to the fault or negligence of Defendant’s attorney. Rather, the absence of Defendant’s counsel was due to his being in trial in United States of America vs. Richard Wayne Ochoa, Cause Number Cr. 75-C— 25, in the United States District Court for the Southern District of Texas, Corpus Christi Division. A jury of said case was picked on September 10,1975. The actual trial of the case commenced at 9:00 a. m. on Monday, October 6, 1975.
II
The Defendant has a meritorious defense and cause of action in this case. Defendant would show that the proximate cause of this collision was the negligence of the Plaintiff, who failed to maintain the minimum posted speed.”

Attached to the amended motion is an affidavit of the defendant, the pertinent parts of which read, as follows:

“My name is David Hatton. I am a resident of Corpus Christi, Nueces County, Texas. The collision made the subject of this lawsuit was not due to any negligence on my part. Rather, the collision was due to the Plaintiff’s negligence in failing to maintain the minimum posted speed.”

Defendant did not meet the burden imposed upon him by Craddock, as clarified by Ivy v. Carrell, supra. The requirement of having a meritorious defense, and setting it up by facts which in law would constitute a defense to the suit instituted by plaintiff, supported by affidavit or other evidence which proves prima facie that defendant has such meritorious defense was not met in this case. The affidavit merely alleges that the collision was due to plaintiff’s negligence in failing to maintain the minimum posted speed. There is no fact allegation as to the minimum posted speed, nor is there a fact allegation as to the speed of plaintiff’s vehicle at the time of the collision. The allegations in the affidavit are only conclusions of the affiant (defendant), and do not allege facts. The factual allegations set out in paragraph I of the motion, without more, do not furnish a legal basis for the granting of a new trial. The assertions and allegations contained in paragraph II of the motion are insufficient in law to warrant the granting of a new trial; those assertions and allegations, like those contained in the affidavit which is attached to the motion, are only conclusions and in no way allege any facts. See Leonard v. Leonard, 512 S.W.2d 771 (Tex.Civ.App.-Corpus Christi 1974, writ dism’d); Haskins v. Finks, 470 S.W.2d 717 (Tex.Civ.App.-Eastland 1971, writ ref’d n. r. e.).

The trial court heard evidence on the motion for new trial and concluded that the motion should be overruled for several reasons, one being that the “defendant in his motion for new trial failed to set up either in his pleadings or by affidavit facts which in law establish prima facie that the defendant had a meritorious defense”. The record fully sustains that conclusion of law. The trial court did not abuse its discretion in overruling the motion for new trial. Defendant’s point is overruled.

The judgment of the trial court is AFFIRMED.


author: J. CURTISS BROWN, Chief Judge.

text:
    John Bartley JONES, Appellant, v. Martha Sue YOUNG et al., Appellees.
    No. 1337.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 28, 1976.
    Rehearing Denied Sept. 8, 1976.
    Thomas E. Green, Jr., Green & Sims, Michael D. Stewart, Urban, Coolidge, Pennington & Scott, Houston, for appellant.
    Ewing Werlein, Jr., W. McNab Miller, III, Vinson, Elkins, Searls, Connally & Smith, Thomas D. White, Ted B. Widmer, L. L. Elliott, J. R. Smith, Timothy Horan, Jr., Monteith, Baring & Nester, Houston, for appellees.
   J. CURTISS BROWN, Chief Judge.

This is a suit to remove a cloud on title and for declaratory judgment.

John Bartley Jones (Jones or appellant) filed suit against certain landowners and lien holders (appellees) in Rollingwood, a subdivision of Houston, Texas, as representatives of the class comprised of all owners and lien holders in the subdivision, seeking to have certain restrictive covenants declared not to apply to his property. Jones claimed that the restrictive instruments were not applicable to his lots and that enforcement of the restrictions would interfere with his complete use and enjoyment of his property. He prayed that the restrictions be removed as a cloud on his title or declared to be ineffective under the Texas Uniform Declaratory Judgments Act, Tex. Rev.Civ.Stat.Ann. art. 2524-1 (1965). Several defendants filed answers. Others filed pleas to the jurisdiction seeking a dismissal on the ground that no justiciable controversy was shown to exist and that the court was being asked to render an advisory opinion. The trial court sustained these pleas and dismissed the suit on the pleadings. Jones has duly perfected this appeal claiming that the trial court erred in dismissing his cause of action because there was a justiciable controversy.

An action to remove a cloud on title (or to quiet title, or for cancellation of restrictions) is an appropriate means for a landowner to seek affirmative relief against restrictive covenants which limit his use and enjoyment of his property. See Simon v. Henrichson, 394 S.W.2d 249 (Tex.Civ.App., Corpus Christi 1965, writ ref’d n. r. e.). An action for declaratory judgment is also an appropriate means for seeking a determination of the validity, applicability, or enforceability of such restrictions. See Anderson v. McRae, 495 S.W.2d 351 (Tex.Civ.App., Texarkana 1973, no writ); McGuire v. Davis, 483 S.W.2d 553 (Tex.Civ.App., Waco 1972, writ ref’d n. r. e.).

In any suit, whether the relief sought is consequential or declaratory, there must exist a justiciable controversy between the parties. California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960). The supreme court in Board of Water Engineers v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722, 724 (1955) stated that the phrases “advisory opinion" and “justiciable controversy” refer to the requirements that (a) there be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought.

The petition in this case demonstrates that a very real and important controversy exists between the parties, which can be determined in this suit. The question is: Does the restrictive instrument, which is of record and purportedly imposes certain restrictive covenants on the entire subdivision in which appellant’s property is located, apply to appellant’s lots? An answer to that question would finally and completely terminate the present controversy.

Five of the defendants filed general denials in the trial court. None filed disclaimers. Appellees do not concede that the restrictive instruments are not applicable to appellant’s lots. There exists between these parties an actual controversy which would have been determined by the removal of the cloud on appellant’s property or a judicial declaration that such lots are not subject to the restrictive instrument. It should be noted that insofar as a declaratory judgment is sought, all persons who have a claim or interest that would be affected by the declaration must be made parties to the suit.

In any event, it was error for the trial court to dismiss appellant’s suit. In Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.Sup.1974), our supreme court vigorously condemned a procedure which denied the plaintiff the opportunity to amend his pleadings to state a cause of action:

“In the instant case [plaintiff] was precluded opportunity to amend his pleadings once the trial court had granted the motion for summary judgment. This court believes that the protective features of special exception procedure should not be circumvented by a motion for summary judgment on the pleadings where plaintiff’s pleadings, as here, fail to state a cause of action. To do so would revive the general demurrer discarded by Rule 90, Texas Rules of Civil Procedure.” Id. at 10.

Accord, Swilley v. Hughes, 488 S.W.2d 64 (Tex.Sup.1972); Bexar Plumbing Co. v. McKittrick, Drennan, Richardson, Wallace Architects, 532 S.W.2d 112 (Tex.Civ.App., Houston [1st Dist.] 1975, no writ).

Although this is not a summary judgment case, the summary dismissal on the pleadings, without giving the plaintiff an opportunity to amend his pleadings, constitutes the same error condemned by the supreme court in Herring. Appellant’s point 1 is sustained, and the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.


author: EVANS, Justice.

text:
    Gertrude Luetta McCARTNEY, Relator, v. Hon. Herman W. MEAD, Judge, Court of Domestic Relations No. 2, Harris County, Texas, Respondent.
    No. 16757.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 12, 1976.

      L. A. Greene, Jr., Houston, for appellant.
    Joe Resweber, County Atty., Bradley Seals, Asst. County Atty., Houston, for ap-pellee.
   EVANS, Justice.

This original proceeding for mandamus was brought by Relator, Gertrude Luetta McCartney, to compel the Honorable Herman W. Mead, Judge of the Court of Domestic Relations No. 2, Harris County, Texas, to approve relator’s affidavit of inability to pay costs of appeal.

Rule 355, Texas Rules of Civil Procedure provides:

“(a) When the appellant is unable to pay the costs of appeal or give security therefor, he shall be entitled to prosecute an appeal by filing with the clerk his affidavit stating that he is unable to pay the costs of appeal or any part thereof, or to give security therefor.
“(b) The appellant or his attorney shall forthwith give notice of the filing of such affidavit to the opposing party or his attorney.
“(c) Any interested officer of the court or party to the suit, may, by sworn pleading, contest the affidavit within ten days after the giving of such notice whereupon the court trying the case (if in session) or (if not in session) the judge of the court or county judge of the county in which the case is pending shall set the contest for hearing, and the clerk shall give the respective parties notice of such setting.
“(d) Upon such hearing the burden of proof shall rest upon the appellant to sustain the allegations of his affidavit.
“(e) Where no contest is filed in the allotted time the allegations of the affidavit shall be taken as true.
“(f) Where the appellant is able to pay or give security for a part of the costs of appeal he shall be required to make such payment or give such security (one or both) to the extent of his ability.”

The divorce judgment from which relator appeals was entered on March 16, 1976. Subsequently, on May 3, 1976, the trial court overruled relator’s motion for new trial and denied relator’s motion for temporary support during the appeal. On May 5, 1976, relator filed an affidavit of inability to pay the costs of appeal, which was timely contested. On May 20, 1976, the divorce court sustained the contest and refused to' approve the affidavit of inability to pay costs. This proceeding was then filed on May 25, 1976. During the pendency of this original proceeding for mandamus, the relator posted an appeal bond and has filed a transcript and statement of facts.

This court is first required to determine whether the posting of an appeal bond by relator renders moot this proceeding for mandamus.

This court’s authority to issue a writ of mandamus under these facts is limited to the protection or enforcement of its acquired jurisdiction under Article 1823, Tex.Rev.Civ.Stat.Ann. The filing of an appeal bond in the trial court vests jurisdiction in this court for the purpose of issuing such writs and orders as may be necessary to protect its acquired jurisdiction. Schrader v. Garcia, 512 S.W.2d 830 (Tex.Civ.App.-Corpus Christi 1974, no writ). This jurisdiction also vests by reason of the filing of an affidavit showing inability to give cost bond. Carlisle v. Wilson, 103 S.W.2d 434, 436 (Tex.Civ.App.-Galveston 1937, no writ).

Rule 363, Texas Rules of Civil Procedure, provides in part:

“When a bond is required by law the appeal is perfected when the bond or affidavit in lieu thereof has been filed, or if affidavit is contested, when the contest is overruled.”

If an affidavit filed pursuant to Rule 355 is not timely contested, jurisdiction vests in the appellate court as of the date of the filing of the affidavit. Coleman v. Long, 407 S.W.2d 279, 281 (Tex.Civ.App.-Dallas 1966, no writ), and authorities therein cited. Under such circumstances the subsequent filing of a cost bond would not have rendered a mandamus proceeding moot. An appeal can only be perfected once, either by the giving of a cost bond or by the filing of proper affidavit, each method being exclusive of the other. De Miller v. Yzaguirre, 143 S.W.2d 425, 427 (Tex.Civ.App.-El Paso 1940, writ ref’d).

The question here is whether an ultimate determination that the affidavit of inability to pay costs should have been sustained is considered to relate back to the date of the trial court’s ruling on the contest, thus perfecting the appeal at that time.

If relator, at the hearing on the contest to her affidavit, met the burden of proof imposed upon her by Rule 355, she was entitled to have the contest overruled at that time. If her affidavit is ■ ultimately sustained, her appeal should be considered as having been perfected on the date the trial court entered its order on the contest. Rule 363, T.R.C.P. In such event, the subsequent filing of an appeal bond would have no legal effect on the appeal which would already have been perfected. Therefore, the matters raised by relator’s application for mandamus are not moot.

Relator contends that she did not receive appropriate notice of the hearing on the contest and that she was prejudiced by the trial court’s refusal to grant her request for a one-day continuance.

The counsel for respondent testified at the hearing that a copy of the contest was, through oversight, sent to the wrong attorney; that upon discovering the mistake, he telephoned the law offices of relator’s counsel about 4:30 p.m. on the day prior to the hearing and notified a lawyer with that firm that the contest had been filed and a hearing was to be held the following day. Relator’s counsel appeared at the hearing and requested that the case be reset for the following day so that the district clerk, who had signed the contesting affidavit, could be called as a witness and examined as to his knowledge of the facts.

A notice of the filing of a contest may be given by any means by which the party or his attorney is given actual notice of the filing. Rule 355, T.R.C.P.; Stark v. Dodd, 76 S.W.2d 865, 867 (Tex.Civ.App.— Beaumont 1934, no writ); Smirl v. Globe Laboratories, 144 Tex. 41, 188 S.W.2d 676, 671 (1945).

The question is whether relator received reasonable notice of the hearing setting and, if she did not, whether she was prejudiced by the trial court’s refusal to set the case over one day. Relator’s counsel does not complain that he was unable to prepare for the hearing because of the short notice; rather he complains of the unavailability of the district clerk for questioning. The testimony of relator was not disputed and there is no showing that the district clerk’s knowledge, or lack of knowledge, of the facts stated in the contesting affidavit would have assisted relator in meeting her burden of proof. Relator has failed to establish harm by reason of the short notice of the hearing and the trial court’s refusal to grant the requested continuance.

The remaining question for this court’s determination is whether the record reflects an abuse of discretion on the part of the trial court in sustaining the contest and in refusing to approve the affidavit of inability to pay costs. Tubbs v. Coker, 401 S.W.2d 272 (Tex.Civ.App.—Houston 1966, no writ). In making this determination this court must determine whether the record as a whole shows by a preponderance of the evidence the relator’s inability to pay the costs of appeal, or any part thereof, or give security therefor. Tubbs v. Coker, supra; Pinchback v. Hockless, 139 Tex. 536, 164 S.W.2d 19, 20 (1942).

Relator’s testimony is uncontroverted. She has an eighth grade education and her physical disabilities have prevented her from becoming permanently employed. During the pendency of the divorce she worked a total of one week and earned $138.00. Since the divorce she has received no other income and her only assets are those which were awarded to her under the divorce judgment. She had in her possession certain certificates of deposit, stock certificates, rings, a mink stole and other items of personal property. She had borrowed $1,000.00 against a margin account, but she had borrowed all she could against that account. She was awarded a townhouse under the decree and her expenses are a little more than $1800.00 each month. She was possibly four months in arrears in the mortgage payments on her townhouse. She had not, however, attempted to borrow any money in order to pay for the costs of the appeal.

The appeal bond was set in the amount of $500.00. The parties’ estate is substantial enough to insure that regardless of the ultimate decision on appeal, relator will own enough assets to pay the costs which might be adjudged against her. Although the parties stipulated that the court reporter had a policy of requiring a cash payment in advance prior to the production of the statement of facts, the relator might have compelled the court reporter to prepare the statement of facts without payment of an advance fee. See City of Ingleside v. Johnson, 537 S.W.2d 145 (Tex.Civ.App.—Corpus Christi 1976, no writ).

Relator contends that her only source of funds was from the benefits of the divorce judgment; that she could not voluntarily use the assets awarded to her without running the risk of being estopped to prosecute the appeal.

It is generally true that a litigant cannot treat a judgment as both right and wrong, and if the litigant voluntarily accepts the benefits of the judgment he cannot afterward prosecute an appeal therefrom. An exception to this rule exists where a reversal of the judgment will not reduce the benefits which the appealing party has secured thereby. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950); Roye v. Roye, 531 S.W.2d 242 (Tex.Civ.App.—Tyler 1975, no writ); Greenspot Desert Inns, Inc. v. Roy, 63 Cal.App.2d 54, 146 P.2d 39 (1944). An exception may also exist where financial duress compels an involuntary acceptance of the judgment’s benefits. See Cherokee Nation v. United States, 355 F.2d 945, 949, 174 Ct.Cl. 131 (1966); Greenspot Desert Inns, Inc. v. Roy, supra; 4 Am.Jur.2d § 251, p. 747.

The record does not show that relator made any effort to borrow funds for the purpose of giving cost bond. The evidence shows that regardless of the ultimate disposition of specific property, the value of relator’s interest will substantially exceed the amount of any costs which might be adjudged against her. The use of her interest as security for a loan to give a bond for costs would not, in the view of this court, constitute a voluntary acceptance of the benefits of the divorce judgment. Since the record does not reflect that the relator made any effort to borrow funds she did not meet her burden at the hearing on the contest. Stephens v. Dodson, 226 S.W.2d 924 (Tex.Civ.App.—Dallas 1950, no writ).

Relator’s application for writ of mandamus is denied.


author: GUITTARD, Justice.

text:
    Willie SIMS, Appellant, v. CENTURY KIEST APARTMENTS, Appellees.
    No. 19018.
    Court of Civil Appeals of Texas, Dallas.
    Aug. 12, 1976.
    Michael M. Daniel, Dallas Legal Services Foundation, Dallas, for appellant.
    Richard Johnson, Dallas, for appellee.
   GUITTARD, Justice.

Willie Sims, a tenant from week to week in an apartment owned by Century Kiest Apartments, sued to restrain Century Kiest from terminating the tenancy. The trial court, without hearing evidence, denied a temporary injunction on the pleadings, and Sims appeals. Pending the appeal, Century Kiest filed and prosecuted a forcible detain-er suit, obtained a writ of restitution, and caused Sims to be evicted from the apartment. In view of this action, we hold that the tenancy has been terminated and plaintiff’s application for temporary injunction is moot.

The petition alleges as grounds for the injunction that plaintiff received a written notice to vacate the apartment by April 17, 1976, and that this attempt to terminate the tenancy was done with the specific intent of retaliating against plaintiff for activities in organizing a tenant’s council, complaining to the management about the need for repairs and maintenance, and reporting various building code violations to the municipal authorities. Plaintiff also sued for actual and punitive damages. On oral argument plaintiff’s counsel acknowledged that plaintiff had been evicted by forcible de-tainer proceedings. He contends, however, that the application for temporary injunction is not moot because plaintiff did not sue to restrain forcible detainer proceedings, but only to restrain termination of the tenancy. He argues that the judgment in the forcible detainer suit is not res judicata of the question of defendant’s right to terminate the tenancy under Tex.Rev.Civ.Stat. Ann. art. 2226a (Vernon 1971). Accordingly, he insists that the trial court can still give him effective relief by restraining defendant from terminating the tenancy. Such relief, he suggests, would permit him to resume occupancy as a tenant from week to week and continue that occupancy so long as defendant attempts to terminate the tenancy for the purpose of retaliation.

We conclude that the action is moot insofar as it seeks injunctive relief. The petition does not ask for a judgment declaring plaintiff’s right to continue occupancy but only an injunction restraining defendant from terminating the tenancy. Defendant has now done exactly those acts which would have the effect of terminating the tenancy as a matter of contract between the parties, that is, it has given plaintiff notice to vacate and has caused plaintiff to be evicted by a forcible detainer suit. Nothing remains to complete termination of the tenancy. Everything that plaintiff seeks to restrain has already been done. See Cameron v. Saathoff, 345 S.W.2d 281 (Tex.1961).

If plaintiff has a right to resume occupancy by reason of the circumstances alleged in the petition, some action other than an injunction to restrain termination of the tenancy would be necessary. See McCloud v. Knapp, 507 S.W.2d 644 (Tex.Civ.App.—Dallas 1974, no writ); Hodge v. Hendrick, 97 S.W.2d 722, 725 (Tex.Civ.App.—Eastland 1936, no writ); Hartzog v. Seeger Coal Co., 163 S.W. 1055, 1059 (Tex.Civ.App.—Dallas 1914, no writ). Of course, plaintiff’s action for damages remains pending, and we express no opinion on the merits of that action.

The order of the trial court denying the temporary injunction is set aside and plaintiff’s application for temporary injunction is dismissed as moot.


text:
    The TALMADGE TINSLEY CO., INC., Appellants, v. David J. KERR, Appellee.
    No. 19030.
    Court of Civil Appeals of Texas, Dallas.
    Appeal Dismissed on Motion of Appellee on July 8, 1976.
    Aug. 12, 1976.
    Rehearing Denied Aug. 12, 1976.

      Marshal W. Dooley, Herndon, Girand & Dooley, Dallas, for appellants.
    William W. Wilson, Law Offices of David A. Witts, Dallas, for appellee.
   ON MOTION FOR REHEARING

GUITTARD, Justice.

After a nonjury trial, the judge signed a draft of judgment on March 3, 1976, and then signed another on April 17, 1976. We heretofore dismissed the appeal on the ground that no appeal was perfected from the first judgment and that the second judgment was void because, under Tex.R.Civ.P. 329b(5), the first judgment became final and not subject to modification thirty days after it was signed. Appellants now move for a rehearing contending that the first judgment was interlocutory only, and, alternatively, that the second judgment was a nunc pro tunc correction of the first. We hold that the first judgment was final and that the second judgment cannot be considered a correction of the first. Consequently, we overrule the motion for rehearing.

Our decision turns on whether there was any material difference between the two judgments. We hold that there was none. The suit was based on a contract for the sale of land. The purchaser, David J. Kerr, sued for specific performance and for a contractual attorney’s fee, naming as defendant The Talmadge Tinsley Company, Inc. and Talmadge Tinsley. The petition alleges that the individual defendant was acting as “agent, servant and/or employee” of the corporate defendant, and, in the alternative, that he was the apparent agent of the corporation. The first judgment awards plaintiff judgment for title to the land and for the claimed attorney’s fee against “Defendants Talmadge Tinsley and The Talmadge Tinsley Company, Inc.” The second judgment is identical, except that defendants are named as “Defendants The Talmadge Tinsley Company, Inc. and Tal-madge Tinsley Individually and as agent, servant or employee of The Talmadge Tins-ley Company, Inc.”

Appellants argue that the first judgment was interlocutory because it did not dispose of appellee’s action against Tal-madge Tinsley “as agent, servant or employee” of the corporate defendant. This argument is untenable because the first judgment disposes of plaintiff’s claims against both defendants and the words added to the second judgment are meaningless in this context. The only legal effect of the allegation in the petition that the individual defendant was acting as “agent, servant and/or employee” of the corporation is to hold the corporation liable for his acts. If an agent who signs a contract on behalf of his principal is acting within his authority, the principal rather than the agent is liable for a breach. Foster v. Hackworth, 164 S.W.2d 796, 797 (Tex.Civ.App.—Austin 1942, no writ). If an individual purports to act as agent but has no authority, he is liable individually. Calhoun v. Burden, 424 S.W.2d 517, 518 (Tex.Civ.App.—Waco 1968, writ dism’d). The agent can have no liability in a representative capacity distinct from his individual liability and the liability of his principal. Therefore, in this case, the first judgment was a final judgment disposing of all parties and all claims put in issue by the pleadings.

Neither can the second judgment be given effect and made appealable on the theory that it is a correction of the first judgment by an order nunc pro tunc under Tex.R.Civ.P. 316. Since the added language is without legal effect, as above explained, the absence of this language in the first judgment cannot be taken as an error which was corrected nunc pro tunc by the second judgment. Consequently, the second judgment cannot be made the basis for an appeal. Cf. Lung v. Varga, 400 S.W.2d 1, 3 (Tex.Civ.App.—Austin 1966, no writ).

Motion for rehearing overruled.


author: OSBORN, Justice.

text:
    F L R CORPORATION, Appellant, v. Bill BLODGETT, Trustee, and Texas First Mortgage Reit, Appellees.
    No. 6516.
    Court of Civil Appeals of Texas, El Paso.
    Aug. 18, 1976.
    Rehearing Denied Sept. 15, 1976.

      Wendell S. Loomis, Houston, for appellant.
    Vinson, Elkins, Searls, Connally & Smith, Kenneth E. Johns, Jr., John B. Holstead, Houston, for appellees.
   OPINION

OSBORN, Justice.

The Appellant, F L R Corporation, presents this appeal from an adverse judgment in a trespass to try title action and suit over a trustee’s deed and a cross claim for a declaratory judgment as to the validity of a trustee’s deed following a foreclosure sale. We affirm.

In September, 1970, Mr. Richard Olivere obtained an option to buy the 541-acre Flying L Ranch near Bandera for $754,000.00, with a down payment of $50,000.00 and the balance to be paid over six years. The sale was closed in June, 1971, and title was taken in F L R Corporation, a wholly owned subsidiary of 612 Corporation, in which Mr. Olivere was a stockholder and President at the time of the trial of this case. Most of the stockholders were New York investors. The property was described as a dude ranch with a landing strip, twelve cottages, a tack room, swimming pool and tennis courts at the time of the sale.

Mr. Olivere decided to fully develop the property by dividing it into lots for home-sites, building the necessary roads, adding a golf course, club house, riding stable and small lake. An additional 167 acres of adjoining land was purchased to use in the development. In order to obtain the necessary capital, F L R obtained a $3,000,000.00 loan from Texas First Mortgage Real Estate Investment Trust (TFMR) on February 28, 1973. F L R executed a note and deed of trust along with an Assignment of Contract Rights and a Construction Loan Agreement. TFMR initially advanced $1,784,675.15 under the loan agreement. Additional advances increased the amount to $2,019,206.66. By making an assignment of Sales Contracts, F L R was able to obtain a loan in July, 1973, from FBS Financial for $1,105,000.00, of which $847,000.00 was paid on the note to TFMR. Shortly after development began, an energy crisis developed and inflation increased rapidly. The estimated cost of the planned club house went from $275,000.00 to $550,000.00, and the cost of most of the other development plans increased in a like manner. TFMR refused to advance the funds for the club house because the contingency fund provided for in the loan was not sufficient to cover the cost increase, and the total projected development cost exceeded the available funds. With development stalled and problems in the national economy adversely affecting the land development market, F L R was in financial difficulty. Tax liens were filed on the ranch in the Spring of 1974. A number of property owners sued F L R when promised development was stopped. Defaults occurred under the deed of trust when lots were transferred without releases from TFMR and when second and third liens were placed on some of the land. The ranch operations were losing money each month, and it finally became necessary for TFMR to pay some monthly bills for operations to continue.

On May 13, 1974, TFMR posted notices for a trustee’s sale on June 4,1974. Late in the afternoon on June 3, 1974, F L R filed suit in Houston seeking a restraining order to enjoin the sale. Before the order was granted, counsel for TFMR appeared and requested a hearing. The district judge agreed to hear the matter the following morning. That evening, Mr. Olivere and his attorney flew to Brady and shortly after midnight, District Judge A. P. Allison granted a temporary restraining order. When counsel for TFMR arrived for the hearing in Houston on June 4, they were advised that F L R was taking a nonsuit. After learning of the order issued by Judge Allison, they requested a hearing which was set for that afternoon. While they were flying from Houston to Brady, counsel for F L R was flying back to Houston, unaware of the hearing scheduled for later in the day. At about 3:15 p. m., Judge Allison had a conference call with the attorneys in Houston for F L R and the attorneys for TFMR in Brady. At the conclusion of the “telephone hearing”, the temporary restraining order was dissolved. Judge Allison had previously authorized the trustee to start reading the notice of sale. At 3:45 p. m., he authorized the completion of the sale. The sale was concluded at about 3:58 p. m., with TFMR bidding $950,000.00. Mr. Oli-vere actually bid $5,000.00 more, but he did not have any funds to complete the purchase.

Thereafter, F L R was dispossessed and TFMR took possession of the ranch. Subsequently, F L R filed this suit for title and possession of the ranch and damages. TFMR answered and filed a counterclaim for a declaratory judgment as to the validity and effect of the trustee’s deed, a deficiency judgment and order to enjoin F L R from interfering with TFMR’s ownership, possession and control of the Flying L Ranch. The claim for a deficiency judgment was nonsuited during trial. Following a jury verdict, judgment was entered that the trustee’s deed was valid and effective to convey title to TFMR, and it was ordered that F L R take nothing on its claim for title and possession of the ranch.

By its first point, F L R complains of the trial Court’s judgment on the trespass to try title issue in the case and urges that it has shown a superior title and possession from which it was forcibly evicted by TFMR. At the conclusion of F L R’s case, the Court granted a motion for instructed verdict as to the 167-acre tract because the evidence established that F L R had previously parted with its title by a deed to Mr. Olivere, trustee for Majestic Garage Corporation. Having passed title to a third party and placed them in possession, F L R could not contend that it had possession up to the time it was dispossessed in June, 1974, following the trustee’s sale. Continuous possession was essential to its claim by reason of its prior possession. Land v. Turner, 377 S.W.2d 181 (Tex.1964). Thus, we conclude that the trial Court properly granted the motion for instructed verdict as to the 167-acre tract,

A more difficult question arises as to the proof of title to the 541-acre tract. F L R made its claim of title from a common source by attempting to show that TFMR was holding under F L R. Temple Lumber Co. v. Arnold, 14 S.W.2d 926 (Tex.Civ.App.—Beaumont 1929, writ dism’d); Jones v. Parker, 193 S.W.2d 863 (Tex.Civ.App.—Texarkana 1946, writ ref’d n. r. e.). As proof, it offered the deed of trust, dated February 28, 1973, given by F L R to secure the $3,000,000.00 loan to TFMR and then offered the substitute trustee’s deed “ * * not for proof of title, but for the proof of common source only, and for that limited purpose under the rules.” See Rule 798, Tex.R.Civ.P. Although the exhibit is marked as Plaintiff’s Exhibit 31 and Defendant’s Exhibit 34, it was never offered by Defendant-Appellee as proof of its title. Mr. Blod-gett, the substitute trustee, did testify as to the sale and the subsequent execution and filing of the deed. But, as a general rule, an interest in real property can be established only by a valid written instrument and not by parol evidence. City of Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712 (1956); 56 Tex.Jur.2d, Trespass to Try Title, Section 125.

The general rule with regard to an instrument offered for a limited purpose is set forth in 56 Tex.Jur.2d, Trespass to Try Title, Section 128, as follows:

“The plaintiff has the right to introduce evidence for the purpose only of proving a common source of title, and where this is done, such evidence will not be considered for the purpose of showing title in the defendant, unless the evidence is introduced by him. This principle is also set forth by rule, where proof of common source is made by plaintiff by certified copies of deeds, as authorized. The result is that proof of common source may be made and, yet, there may be no evidence of title in the defendant. * * * >>

This principle has been recognized and applied in cases holding that instruments showing a common source of title will not be considered for the purpose of showing title in the defendant, unless it is offered by him. Bosse v. Cadwallader, 86 Tex. 336, 24 S.W. 798 (1894); Young v. Trahan, 43 Tex.Civ.App. 611, 97 S.W. 147 (1906, writ ref’d); Davis v. Gale, 160 Tex. 309, 330 S.W.2d 610 (1960).

In Hovel v. Kaufman, 280 S.W. 185 (Tex. Comm’n App.1926, opinion adopted), the Court commented upon the language used in the Bosse case, and said:

“The correct rule is that, whenever a plaintiff, in a suit in trespass to try title, undertakes to sustain his claim of title by proof of common source, he must show, in order to make a prima facie case for himself, not only that both he and the defendant claim title under a common source, but also must show that the title emanating from the common source which the plaintiff claims is superior to that claimed by defendant, and that plaintiff holds such title. * * * ” (Emphasis added).
******
“The plaintiff in error having failed to show, before she rested her case, that she held the title to the land, the defendant in error was not placed under the necessity of introducing any proof at all, and the trial court properly instructed a verdict for the latter.”

That decision was followed in Tate v. Johnson, 140 S.W.2d 288 (Tex.Civ.App.—Fort Worth 1940, writ dism’d jdgmt. cor.), where the Court said:

“It is contended that the court erred in entering judgment against plaintiff on the evidence introduced by plaintiff showing title in another, when the instruments were only offered for the purpose of showing common source. * * * ”
******
“ * * * While in this case plaintiff did not trace the title into defendants, but he did, by his evidence, show that title had been divested out of himself.
“Plaintiff relies upon Article 7382, R.C.S., which in effect provides that evidence introduced by plaintiff to show common source cannot be considered as evidence of a title in defendant unless offered by him, yet in Hovel v. Kaufman, Tex.Com.App., 280 S.W. 185, at page 188, it was said: ‘But this statutory provision in no wise precludes a consideration of such evidence for the purpose of determining if the plaintiff has discharged the burden of proving that he really has title to the land as he claims to have.’
“It is a well settled rule of law in this State that in trespass to try title, plaintiff must recover, if at all, upon the strength of his own title. The burden is upon him to prove a prima facie right of title and possession; if he fails to discharge that burden he cannot recover, and where defendant is shown to be in possession, as in this ease, judgment will be entered for the defendant. * * * ”

Thus, we conclude that the trustee’s deed which was offered for a limited purpose did not establish title in TFMR, but it did prove that F L R had parted with its title to the Ranch. Thus, having no title, it could not recover in this case.

There is yet another reason why the Appellant cannot prevail under the facts in this case. In Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079 (Tex. Comm’n App.1938, opinion adopted), the Court in an opinion by Commissioner Smedley said:

“ * * * It is settled in this state that a mortgagee who has purchased the land at foreclosure sale, irregular or void as to the mortgagor (or as to one having title under the mortgagor), and who has taken possession under and in reliance upon such foreclosure and purchase, may retain possession against the suit of the mortgagor, or one holding under him, until his debt is paid. * * * ”

The same result was reached in another opinion by Commissioner Smedley in Connor Bros. v. Williams, 130 Tex. 572, 112 S.W.2d 709 (Tex.Comm’n App.1938, opinion adopted). Both of those cases were followed in Willoughby v. Jones, 151 Tex. 435, 251 S.W.2d 508 (1952), where Justice Gar-wood writing for the Court said:

“ * * * Although admittedly the petitioner upon his foreclosure purchase went into possession of the lands described in the petition of the respondents in the present case and is still in possession, respondents have not made a tender of the mortgage debt, which, at least in the ordinary case of a mortgagee in possession under a foreclosure void as to the mortgagor-plaintiff, would be a necessary prerequisite for a successful title action by the latter against the former. Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 115 A.L.R. 329; Connor Bros. v. Williams, 130 Tex. 572, 112 S.W.2d 709.”

To the same effect are the holdings in Dyess v. West’s Estate, 257 S.W.2d 737 (Tex.Civ.App.—Galveston 1953, writ ref’d n. r. e.); Edinburg Theatres, Inc. v. Richter, 367 S.W.2d 354 (Tex.Civ.App.—San Antonio 1963, no writ); Whalen v. Etheridge, 428 S.W.2d 824 (Tex.Civ.App.—San Antonio 1968, writ ref’d n. r. e.). The first point of error is overruled.

F L R next contends that the trustee’s sale was invalid for several reasons which we shall note. First, it is contended that there was no notice of default, acceleration and foreclosure presented to F L R. On August 6, 1973, a letter was written to F L R advising of default. On December 6, 1973, another letter was written with regard to default. In addition to the written notices, there is substantial evidence of oral notice of default at other times prior to the foreclosure. The issue of acceleration was removed from the suit when TFMR took a nonsuit on its counterclaim for a deficiency judgment. The final judgment in this case did not provide for recovery of any sum of money and thus, there is no issue of acceleration and recovery for the full amount due on the note. With regard to notice of foreclosure, the evidence is undisputed that the substitute trustee did post the notices as provided for in the deed of trust. All of the claims with regard to lack of notice are without merit.

Next, it is urged that Bill Blodgett, the substitute trustee, was not of the same quality and independent character as the original trustees. As shown by the evidence, he was an agent and attorney for TFMR. The jury failed to find that, while acting as substitute trustee, he was under the exclusive direction and control of TFMR. There is no attack as such upon that answer. The evidence indicates that he was properly appointed, complied with the law in conducting the sale, and the sale is not invalid because of any acts upon his part as trustee under the deed of. trust.

It is further urged that the sale was invalid because it was commenced before the temporary restraining order was dissolved. Because of the action taken by F L R in deciding to go to Brady to get the temporary restraining order, rather than have the scheduled hearing in Houston, it was necessary for Judge Allison to act on short notice once a hearing was requested. He specifically authorized the trustee to commence reading the notice of sale and lengthy property description before the temporary restraining order was dissolved. Otherwise, the hearing would have been an exercise in futility because the notice and description could not have been read after the hearing was concluded at 3:45 and the sale completed by 4:00 p. m. as required by law. The controlling point is the fact that the jury found that the Court dissolved the temporary restraining order at 3:45 p. m. and the sale was completed at 3:58 p. m. No attack is made on those findings.

Lastly, it is contended that the consideration bid by TFMR was grossly inadequate. The jury failed to find that the trustee received grossly inadequate consideration for the property. We cannot say that such answer is clearly wrong, nor that an affirmative answer was established as a matter of law. It must be remembered that all construction had stopped, many promises to property owners were unfulfilled, the sale of lots had practically ceased, suits and liens had been filed and the project development was no longer viable. Point of error, number II, is overruled.

F L R next contends that the trial Court erred in issuing its verbal order dissolving the temporary restraining order. We find the point does not present reversible error for several reasons. First, at the time the temporary restraining order was signed, no pleadings had been filed and none were filed in Judge Allison’s Court until 9:10 a. m. the next morning. At that time, there was pending an identical suit in the 190th District Court in Harris County. “The general common law rule in Texas is that the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate courts.” Curtis v. Gibbs, 511 S.W.2d 263 (Tex.1974). Judge Allison, as a witness in this case, testified that he was not told at the midnight meeting that an identical suit was filed, and in fact set for hearing in Houston the next morning. In order to recognize that dominant jurisdiction, he took the only course available to him, and that was to dismiss the temporary restraining order. Of course, at that time the Houston suit had been nonsuited, and F L R was left with no case or time to seek a temporary restraining order before the sale was completed. But it was their choosing to file one suit, leave it and go elsewhere for relief and not tell the judge in Brady of the pending suit. in Houston. Having made this bed, they must now sleep in it.

Rule 680, Tex.R.Civ.P., permits the adverse party, on such notice as the Court may prescribe, to move to dissolve the temporary restraining order and requires the Court to determine such motion as expeditiously as the ends of justice require. We believe the District Judge did as the rule requires, recognizing the position he had been placed in after learning of the Houston suit’ and the unavailability of counsel for F L R. At the conclusion of the telephone conference call, he determined that the temporary restraining order should be dissolved. One of the exhibits identified by Judge Allison was a copy of the order dissolving the temporary restraining order, bearing Judge Allison’s signature, and reciting that the temporary restraining order was set aside and dissolved as of 3:45 p. m. on June 4, 1974. We find no error in the entry of that order. Point of error, number III, is overruled.

The next seven points are all presented without any citation of authority in support of them, but, nevertheless, we shall consider and pass on each of the points. The fourth point complains of the jury’s answers to Special Issues 12 and 13 and urges that those answers should be disregarded and this Court determine that the price bid at the sale was grossly inadequate. As previously noted, the jury in Issue 12 failed to find that the price bid at the trustee’s sale was grossly inadequate consideration. The negative answer only means that F L R failed to carry its burden of proof on the issue. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966). The contrary has not been established as a matter of law. Issue No. 13 as to market value was improperly worded, and the answer is meaningless, but it was an issue requested by F L R and to which it made no objection either to the issue or the answer. Thus, no error is presented. The point is overruled.

The next point urges that the trial Court erred in not disregarding the answer to Special Issue No. 2. The issue inquired if F L R submitted plans, specifications and cost of improvements for a club house to TFMR in June, 1973. The jury answered in the negative. Again, the answer only means a failure to carry the burden of proof on the issue. Although there was evidence to support an affirmative answer, we cannot say that such answer was established as a matter of law. Point of error, number V, is overruled.

Point of error, number VI, contends the trial Court erred in submitting Special Issues Nos. 15-26. First, the point is multifarious in attacking eleven unrelated issues. Chemical Cleaning, Inc. v. Chemical Cleaning and Equipment Service, Inc., 456 S.W.2d 724 (Tex.Civ.App.—Beaumont), writ ref’d n. r. e. per curiam 462 S.W.2d 276 (Tex.1970); Holzapfel v. Brueggman, 404 S.W.2d 916 (Tex.Civ.App. — Corpus Christi 1966, writ ref’d n. r. e.). The argument only relates to three or four of the issues, and no authority is cited in support of the contention. The Appellant’s objections to the charge are not included in the transcript with the judge’s endorsement thereon as required by Rule 272, Tex.R.Civ.P., in a case tried prior to January 1, 1976. No reversible error is shown. The point is overruled.

Point of error, number VII, complains of a failure to grant a mistrial during voir dire examination. There is no assignment of such error in the motion for new trial, and the complaint has been waived. Rules 324 and 325, Tex.R.Civ.P. The point is overruled.

The next two points urge error as shown at a hearing on jury misconduct. It does not reasonably appear from the evidence, both at the hearing of the motion and the trial of the case and from the record as a whole, that injury probably resulted to F.L.R. Rule 327, Tex.R.Civ.P. Where the trial Court, in ruling on a motion for new trial based upon jury misconduct, does not file express findings, it will be presumed on appeal that the Court found all controverted facts in support of the judgment overruling the motion for new trial, and that no misconduct occurred. Brungs v. Consolidated Plan Service, Inc., 529 S.W.2d 79 (Tex.Civ.App.—San Antonio 1975, writ ref’d n. r. e.). Points of error VIII and IX are overruled.

The Appellant’s tenth and final point complains that the trial Court erred in failing to grant a new trial on the basis of newly discovered evidence following the hearing on the motion for new trial. The motion is made with regard to the testimony of the one juror who signed an affidavit in connection with the claim of jury misconduct and which was attached to the motion for new trial. This juror was not one of the ten who signed the jury verdict. We have considered the contentions presented by the motion, and conclude that the trial Court did not err in overruling the motion. The point of error is overruled.

The judgment of the trial Court is affirmed.


author: COLEMAN, Chief Justice.

text:
    Claude HALEY dba Frank’s Tomato House, Appellant, v. Earl YOUNG, Appellee.
    No. 16731.
    Court of Civil Appeals of Texas, Houston.
    Aug. 19, 1976.
    Denson & Swain, Richard B. Warnke, Houston, for appellant.
    No brief filed for appellee.
   COLEMAN, Chief Justice.

This is an appeal from an order quashing a writ of garnishment on the ground that the judgment to which it is ancillary is invalid. This finding was based on the fact that the petition alleged a cause of action against “Earl Young, Jr.”, and service was had on “Earl Young, Jr.”, but the judgment was rendered against “Earl Young.” The judgment will be reversed and the cause remanded.

The plaintiff alleged that it sold to the defendant, Earl Young, Jr., certain produce and was given in payment therefor two checks, one in the sum of $365.75, and the other in the sum of $382.50. In the upper lefthand corner of each of these checks was printed:

“EARL YOUNG, JR.

905 Oak St., Apt. No. 35 Houston, Texas” Each check was signed “Earl Young.” The citation reflects service on Earl Young, Jr. at 2021 Airline. An answer was filed on behalf of “Earl Young, Jr.” by John C. Perkins under whose signature appears the legend “Attorney for Earl Young, Jr.”

The plaintiff filed a motion for summary judgment, and in opposition thereto a “Motion” was filed. The first paragraph of this motion reads:

“COMES NOW, EARL YOUNG, Defendant in the above styled and numbered cause and files this his motion in opposition to Plaintiff’s motion for summary judgment in said cause, and for grounds therefore would show unto the Court as follows:
I.
“Defendant would show unto the Court that Plaintiff’s cause of action is based upon the sale by Plaintiff and purchase of Defendant of perishable goods. Defendant would further show unto the Court that there is a legitimate dispute as to the value and quality of the goods which were purchased . . .”

The pleading was signed “John Cody Perkins” attorney for Defendant.

An affidavit in opposition to the motion was also filed. This affidavit reads:

“My name is Earl Young. I am the Defendant in the above entitled and numbered cause, and I am engaged in the business of the purchase and resale of produce in and about Houston, Harris County, Texas.
“On or about the first day of June, 1973, I purchased from the Plaintiff in the above referenced cause a quantity of tomatoes and executed and delivered to Plaintiff, my check payable to Frank’s Tomato House, drawn on the Northwest National Bank, Houston, Harris County, Texas, in the amount of $365.75.
“On or about the second day of June, 1973, I purchased a second quantity of tomatoes from the Plaintiff herein, and on the same day issued a second check which was executed and delivered to Frank’s Tomato House and made payable thereto, drawn on the Northwest National Bank in the amount of $382.50.

This affidavit was signed by Earl Young and notarized by his attorney, John C. Perkins.

Subsequently in response to a motion for sanctions the defendant’s pleadings were struck and a judgment was entered in favor of Claude Haley d/b/a Frank’s Tomato House and against “Earl Young” in the sum of $748.25 together with interest and costs. In response to plaintiff’s application the writ of garnishment was issued to Northwest National Bank. The bank filed answer admitting that it was indebted to Earl Young. A motion to quash was then filed by Earl Young in which it was stated:

“The judgment upon which the garnishment proceeding is based is against EARL YOUNG, JR. EARL YOUNG and EARL YOUNG, JR. are not one in the same person.”

Both the judgment and the abstract of judgment show the defendant’s name to be “Earl Young.”

By his answer to plaintiff’s motion for summary judgment Earl Young made himself a party to the suit against “Earl Young, Jr.” He judicially admitted that he wrote the checks which form the basis of the plaintiff’s cause of action. He admitted that he stopped payments on the checks drawn on the Northwest National Bank of Houston, Harris County, Texas. In a letter directed to the clerk of the court and filed in the cause John Cody Perkins stated that he did not represent Earl Young, Jr. and that he did represent Earl Young, Sr. While he stated that Earl Young, Sr. was not a party in the ease, all of the pleadings filed for the defendant were filed by John Cody Perkins as attorney for the defendant Earl Young.

A writ of garnishment may be issued when the plaintiff has a valid and subsisting judgment. Article 4076, V.A. C.S. Where a garnishment is based on a judgment, there must be a valid judgment against the person who is the owner of the fund garnished. Stallings v. Jim Handley, Inc., 181 S.W.2d 814 (Tex.Civ.App.-Galveston 1944, no writ); Burrow-Jones-Dyer Shoe Co. v. Gerlach Mercantile Co., 200 S.W. 250 (Tex.Civ.App.-Amarillo 1918, no writ). A judgment which is void for lack of service will not support a writ of garnishment. First National Bank of Marshall v. Alexander, 236 S.W. 229 (Tex.Civ.App.—Texarkana 1921, no writ history).

The necessity for the service of citation on a defendant in a case is waived when he files an answer. Culligan Soft Water Service v. State, 385 S.W.2d 613 (Tex.Civ.App.-San Antonio 1964, writ ref’d n.r.e.); Bullock v. Land, 443 S.W.2d 60 (Tex.Civ.App.-Eastland 1969, writ ref’d n.r.e.); Gonzales v. Gonzales, 484 S.W.2d 611 (Tex.Civ.App.-El Paso 1972, no writ history).

Where the proper person intended to be sued was incorrectly named in the plaintiff’s petition and was served with citation under the incorrect name a judgment rendered against the defendant using the incorrect name is nevertheless binding. Abilene Independent Telephone & Telegraph Co. v. Williams, 111 Tex. 102, 229 S.W. 847 (1921); McGhee v. Romatka, 92 Tex. 38, 45 S.W. 552 (1898); Duncan v. Smith Bros. Grain Co., 113 Tex. 555, 260 S.W. 1027 (1924).

Earl Young cannot file an answer in the main suit and participate in the defense of that suit and, after judgment is rendered, contend that the judgment was not rendered against him. It is clear from the record that the Earl Young who defended the cause was the same Earl Young who filed the motion to quash garnishment.

This appeal was taken without a statement of facts or findings of fact. In such a case an appellate court may assume that proof was introduced in the trial court which would have supported its judgment. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683 (1951). In this case, however, the motion to quash is based on the sole ground that the judgment on which the garnishment was based was rendered against Earl Young, Jr. rather than Earl Young. It is established by the record that the judgment was rendered against Earl Young, that Earl Young appeared and defended the suit, and that Earl Young is the owner of the account which was reached by the garnishment proceeding. The judgment entered reflects that the motion to quash was sustained on the grounds stated in said motion. Since the grounds on which the court acted in quashing the writ of garnishment are stated in the order entered by the court, the failure to present a statement of facts in this court is not decisive of the appeal. The fact that the judgment was rendered against Earl Young, who defended the suit, is established by the record and by judicial admission. Evidence taken at this ancillary proceeding could not affect the validity of the judgment rendered.

The garnishment proceedings are in proper form and have not been attacked by any of the parties to this suit. The garnishee has answered, admitting an indebtedness to Earl Young. Earl Young made himself a party to these proceedings by filing a motion to quash. This is a permissible procedure. Phillips v. Interstate Securities Co. of Texas, 250 S.W.2d 444 (Tex.Civ.App.-El Paso 1952, no writ history). The only issue made by the pleading is whether the judgment upon which the garnishment proceeding was based was taken against Earl Young, Jr. rather than Earl Young. We notice that the garnishment proceeding was filed under the style and number of the main suit contrary to the requirement of Rule 659, Texas Rules of Civil Procedure. However, in a garnishment suit judicial notice is taken of the proceedings and judgment in the main suit. McCormick & Ray, Texas Law of Evidence, 2nd Ed., § 185, p. 204.

The judgment of the trial court is reversed and the cause is remanded to the trial court with instructions to enter judgment in favor of Claude Haley d/b/a Frank’s Tomato House and against Northwest National Bank, Houston, Harris County, Texas, as required by Rules 668 and 677, Texas Rules of Civil Procedure.


text:
    HOUSTON DRYWALL, INC., Appellant, v. CONSTRUCTION SYSTEMS, INC., Appellee.
    No. 16737.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 19, 1976.

      Thompson & Redford, David C. Redford, Houston, for appellant.
    Lapin, Totz & Mayer, William A. Petersen, Jr., Joe Resweber, Michael R. Davis, Houston, for appellee.
   EVANS, Justice.

This application for writ of garnishment was instituted on December 16,1975, by the garnishor, Construction Systems, Inc., against the garnishee, Ray Hardy, District Clerk of Harris County, under a judgment obtained on October 17,1974, against Houston Drywall Systems, Inc., in the amount of $4,473.63 plus attorney’s fees in the sum of $894.73 and interest at the then legal rate. The District Clerk was served with the writ of garnishment on December 19, 1975. On that same date a judgment was entered in another action, Cause No. 954,921, styled Lakeside Commerce Bank, et al. v. Instant Structures, Inc., pending in the 164th District Court of Harris County, which awarded a total sum of $85,295.00, that had been deposited in the registry of that court, to fourteen different parties, one of whom was Houston Drywall Systems, Inc. Under that judgment, Houston Drywall Systems, Inc. was awarded the specific sum of $9,448.37.

On January 5, 1976, the District Clerk filed his sworn answer in the garnishment proceeding, generally denying the indebtedness to the garnishor and specifically asserting that the funds in the registry of the court were in custodia legis and, therefore, not subject to garnishment. The appearance date for the garnishee’s answer was January 12, 1976. On that date, Houston Drywall Systems, Inc. filed its intervention in the garnishment proceeding, and the District Clerk filed his petition seeking authority to interplead the sum of $9,448.37 in the garnishment action and requested that he be discharged. On January 20, 1976, the court granted the petition, ordered the District Clerk discharged as garnishee, and directed that the funds be deposited in the court’s registry pending further orders. Both the garnishor and the intervening judgment debtor then moved for summary judgment, and on February 27, 1976, judgment was entered awarding the garnishor the sum of $5,368.36 plus interest on the fund interpleaded in the court. Houston Drywall Systems, Inc. has perfected its appeal. The judgment will be reversed and rendered.

A fund deposited with a clerk of a court is generally deemed to be in custodia legis and is not subject to garnishment. Pace v. Smith, 57 Tex. 555 (1882); Curtis v. Ford, 78 Tex. 262, 14 S.W. 614 (1890). If the clerk is directed to hold the fund pending further orders of the court, the fund remains in custodia legis and is not subject to garnishment. Houlle v. Martin, 35 S.W.2d 785 (Tex.Civ.App.-Texarkana 1931, no writ). It has been held that an exception to this rule exists where the court’s decree directs the clerk to make distribution of the fund, or where under the circumstances of the case there remains nothing for the clerk to do other than effect delivery or payment to the person entitled. Challenge Co. v. Sartin, 260 S.W. 313 (Tex.Civ.App.-Dallas 1924, no writ), citing Turner v. Gibson, 105 Tex. 488, 151 S.W. 793 (1912). See also Leroux v. Baldus, 13 S.W. 1019 (Tex.Sup., 1890); Southwestern Bell Telephone Co. v. Watson, 413 S.W.2d 846 (Tex.Civ.App. — Corpus Christi 1967, no writ).

In the case at bar the judgment entered December 19, 1975, by the 164th Judicial District Court in Cause No. 954,921 specifically ordered the district clerk to pay the judgment creditor, Houston Drywall Systems, Inc., the sum of $9,448.37 from the funds in the court’s registry. Thus, this case would fall within the exception noted if the judgment was final for purposes of garnishment.

An uncertain demand, although liquidated and fixed by the terms of the judgment, is not subject to garnishment until the judgment becomes final in the sense that it can neither be set aside nor reversed upon appeal. Alexander v. Berkman, 3 S.W.2d 864, 868 (Tex.Civ.App.-Waco 1927, writ ref’d); Waples-Platter Grocer Co. v. Texas & Pacific Ry. Co., 95 Tex. 486, 68 S.W. 265, 266 (1902).

The judgment in Cause No. 954,921, against which the garnishment action was filed, established the entitlement of Houston Drywall Systems, Inc., one of a number of defendants in that action, to share in the funds impleaded by the plaintiffs in discharge of their liability from claims for work and materials resulting from the construction of the Lakeside Commerce Bank. Under that judgment it was decreed that certain defendants, who had not answered or appeared, would take nothing as to the impleaded funds and that the plaintiffs would be discharged from liability as to all defendants. The judgment further decreed that all relief not expressly granted was denied. It was approved “as to form and substance” by the attorneys for the plaintiffs and the answering defendants.

A debt which has become certain and liquidated at the time of the due date for the garnishee’s answer may be reached by writ of garnishment. Gause v. Cone, 73 Tex. 239, 11 S.W. 162 (1889); Keeran v. Salley, 244 S.W.2d 663, 666 (Tex.Civ.App.— San Antonio 1951, writ ref’d). Thus, a garnishment writ which had been obtained after rendition of an appellate court’s judgment but prior to the time the motion for rehearing could have been filed, was held not premature where the garnishee’s answer was filed after the time had expired for the filing of motion for rehearing and after mandate had issued. Raley v. Hancock, 77 S.W. 658 (Tex.Civ.App., 1903, no writ). Similarly, writs of garnishment were upheld against judgments which had been rendered after the date of the service of the writs, where the judgments became final before the answers of the garnishees were filed. First State Bank & Trust Co. v. Blum, 239 S.W. 1035 (Tex.Civ.App.-San Antonio 1922, no writ).

In the case at bar the judgment in Cause No. 954,921 did not become final until after the expiration of thirty days following the date of its rendition. Rule 329b, Texas Rules of Civil Procedure. Until the expiration of that time, the trial court retained the power to set aside, modify, or amend the judgment, either upon a party’s motion or its own motion. McDonald, Texas Civil Practice, Vol. 4, § 18.03, pp. 220-228. As to the defaulting defendants, the judgment was subject to review by writ of error until the expiration of six months after its rendition. Article 2255, Tex.Rev. Stat.Ann.; Griffin v. Browne, 482 S.W.2d 716 (Tex.Civ.App.-Houston [1st] 1972, writ ref’d n. r. e.). The judgment was approved for entry by agreement of counsel for the answering parties; however, that agreement was not binding upon the other parties. Edwards v. Gifford, 137 Tex. 559, 155 S.W.2d 786 (1941).

If at the time of the due date of the garnishee’s answer, a claim remains un-liquidated or contingent, it cannot be reached by writ of garnishment even though it is subsequently rendered certain and absolute by a final judgment. Alexander v. Berkman, supra. On the due date of the District Clerk’s answer in the case at bar, the claim of Houston Drywall Systems, Inc. had not become fixed and established by a judgment which was not subject to being set aside by motion or by appeal. Therefore, the judgment of the court below must be reversed and judgment rendered dismissing the writ of garnishment.

Reversed and rendered.


author: AKIN, Justice.

text:
    Josephine BOYD et al., Appellants, v. Wanda Boyd RATLIFF et al., Appellees.
    No. 18893.
    Court of Civil Appeals of Texas, Dallas.
    Aug. 19, 1976.
    Rehearing Denied Sept. 30, 1976.
    George W. Irwin, Irwin & Whitley, Dallas, for appellants.
    Randall S. Boyd, Lewisville, for appellees.
   AKIN, Justice.

This is a venue appeal by plaintiff, Josephine Boyd, independent executrix of the estate of Emory C. Boyd, from an order sustaining pleas of privilege filed by certain Denton County defendants and transferring this cause to the district court of Denton County. Two principal questions are presented by this appeal: (1) Since this is a suit by an independent executrix for construction of a will admitted to probate in the county court at law of Denton County, does the district court of Dallas County have jurisdiction to construe the will in view of Tex.Prob.Code Ann. § 5(c) (Vernon Supp.1975) which states that petitions regarding administrations shall be filed in the probate court? (2) Because defendant Ratliff is a resident of Dallas County, is venue governed by Tex.Rev.Civ.Stat.Ann. art. 1995(4) (Vernon 1964), as plaintiff contends, or by Tex.Prob.Code Ann. § 8 (Vernon 1956), which establishes venue in probate proceedings, as urged by defendants? Because we hold that the district court had jurisdiction and that venue here is determined by article 1995(4), we reverse the order of the trial court.

Plaintiff sued defendants in a district court of Dallas County under the Uniform Declaratory Judgment Act, Tex.Rev.Civ. Stat-Ann. art. 2524-1 (Vernon 1965), asking the court to construe the will to determine a class of persons designated in the will as heirs of deceased siblings of the testator and to determine whether federal estate taxes should be prorated among the specific devisees and the residuary devisees or should be paid solely out of the residuary property since the will contained no “tax proration” clause. Defendants responded that exclusive jurisdiction of all matters pertaining to the estate, including this action, was in the county court of Denton County, which had probate jurisdiction under § 5(c) of the Probate Code. The trial court found that there was a justiciable controversy requiring a judicial interpretation of the will and that it had jurisdiction, but under § 8(e) of the Probate Code, it ordered transfer of the cause to the district court of Denton County “in the best interests of the estate.”

Jurisdiction

Before we address the merits of this appeal, we must first dispose of the point raised by defendants urging that the district court lacked jurisdiction of the subject matter because § 5(c) vests exclusive jurisdiction of “all petitions regarding probate and administrations” in the statutory probate court of Denton County. They argue, therefore, that- since a suit to construe a will is a matter regarding the administration of an estate, it falls within the ambit of § 5(c), which specifically takes away from the district court original jurisdiction in probate matters. Moreover, they contend that § 5(d) specifically grants to probate courts the power to construe wills. We cannot agree that these sections deny jurisdiction to the district court to construe a will under the Declaratory Judgment Act. Section 5(c) provides:

In those counties where there is a statutory probate court, county court at law, or other statutory court exercising the jurisdiction of a probate court, all applications, petitions and motions regarding probate, administrations, guardianships, and mental illness matters shall be filed and heard in such courts and the constitutional county court, rather than in the district courts, unless otherwise provided by the legislature, and the judges of such courts may hear any of such matters sitting for the judge of any of such courts. [Emphasis added.]

We do not read this section as divesting the district court of its jurisdiction to construe wills. Instead, it denies to the district court only that “general jurisdiction of a probate court” which the 1973 amendment to Tex. Const, art. V, § 8 added to the potential jurisdiction of the district court. The 1973 Amendment further defines this added potential jurisdiction by providing that the district court shall “probate wills . . ., grant letters testamentary and of administration, settle accounts of executors, transact all business appertaining to deceased persons . . ., including the settlement, partition and distribution of estates of deceased persons . . . .” This language, including the term “general jurisdiction of a probate court,” is identical to that defining the probate jurisdiction of the county court in art. V, § 16 as that section had existed since adoption of the constitution in 1876. Since suits to construe wills have never been within “the general jurisdiction of a probate court” in Texas, but were matters within the jurisdiction of the district court before the 1973 amendment to art. V, § 8, we conclude that the legislature did not intend to eliminate that jurisdiction by providing in § 5(c) of the Probate Code that “all applications, petitions and motions regarding probate, administrations,” etc., shall be filed exclusively in “the statutory court exercising probate jurisdiction.”

This language of § 5(c) cannot properly be given a broader interpretation because of the more recently enacted provisions of § 5(d), which specifically grants to the probate court the power to construe wills and to hear other kinds of cases previously reserved to the district court. Section 5(c) was enacted in 1973 by the Sixty-Third Legislature, which also submitted to the voters the amendment to art. V, § 8 of the Constitution adding potential probate jurisdiction to the original jurisdiction of the district court. Tex.Laws 1973, ch. 610, § 1, at 1684. Section 5(d) was added by the Sixty-Fourth Legislature two years later. Tex.Laws 1975, ch. 701, § 2, at 2195. Thus, the Sixty-Third Legislature could not have contemplated that the jurisdiction of the probate court as referred to in § 5(c) would include the additional matters included in § 5(d).

Neither can § 5(d) be construed as limiting by its terms the long-standing jurisdiction of the district court to construe wills. Section 5(d) provides:

All courts exercising origina] probate jurisdiction shall have the power to hear all matters incident to an estate, including but not limited to, all claims by or against an estate, all actions for trial of title to land incident to an estate and for the enforcement of liens thereon incident to an estate, all actions for trial of the right of property incident to an estate, and actions to construe wills. [Emphasis added.]

.This language makes no reference to the jurisdiction of the district court. Absent specific language limiting that jurisdiction, we are unwilling to read into this language a divestment of the jurisdiction of the district court as defendants would have us do. See Wintermann v. McDonald, 129 Tex. 275, 283, 102 S.W.2d 167, 171 (1937); International Service Insurance Co. v. Jackson, 335 S.W.2d 420, 424 (Tex.Civ.App.-Austin 1960, writ ref’d n. r. e.). Accordingly, we conclude that the district court and the county probate court have concurrent jurisdiction to construe wills, unless “otherwise provided” by the legislature under § 5(c).

Venue

Alternatively, conceding the jurisdiction of the district court, defendants contend that the trial court did not err in transferring the cause to Denton County because it was exercising its discretion under § 8 of the Probate Code. Tex.Prob. Code Ann. § 8(a) (Vernon 1956), entitled “Concurrent Venue,” provides that when two or more courts have concurrent venue of an estate, the court in which application for probate proceedings thereon is first filed shall have and retain jurisdiction of the estate to the exclusion of the other court or courts. Section 8(c)(1), entitled “Transfer for Want of Venue,” states that if it appears at any time before the final decree that the proceeding was commenced in a court which did not have priority of venue, the court shall transfer the proceeding to the proper county. Section 8(c)(2) states:

If it appears to the court . . . that it would be for the best interest of the estate, the court, in its discretion, may order the proceeding transferred to the proper court in any other county in this State. [Emphasis added.]

Section 8(e) states:

Any court in which there has been filed an application for proceedings in probate shall have full jurisdiction to determine the venue of such proceeding, and of any proceeding relating thereto, and its determination shall not be subject to collateral attack. [Emphasis. added.]

We cannot agree that § 8 of the Probate Code controls venue here because § 8 must be read in conjunction with §§ 6 and 7. See Tex.Prob.Code Ann. § 8, Comment (Vernon 1956). Section 6 provides for venue to probate wills and to grant letters testamentary or of administration, and § 7 concerns venue for appointment of guardians. We hold that the venue provisions of § 8 pertain only to the proceedings specifically set forth in §§ 6 and 7 and since the present suit for declaratory judgment by an independent executrix is not within either § 6 or § 7, § 8 is inapplicable. See Glens Falls Indemnity Co. v. Sterling, 213 S.W.2d 858 (Tex.Civ. App.-Dallas 1948, mand. overr.).

Plaintiff’s sole point of error is that the trial court erred in sustaining the pleas of privilege and transferring the cause to the district court of Denton County because one of the defendants, who is a necessary party, is a resident of Dallas County. Consequently, she argues that article 1995(4) applies and that the trial court should have overruled the pleas. We agree. Tex.Rev. Civ.Stat.Ann. art. 1995(4) (Vernon 1964) provides: “If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.” Since it is undisputed that Wanda Boyd Ratliff, one of twelve defendants, is a resident of Dallas County and a necessary party to a suit to construe the will, and since plaintiff pleaded and proved a justiciable cause of action against the resident defendant, as well as the other defendants, subdivision (4) is applicable. Accordingly, venue of this suit is properly in Dallas County.

The order of the trial court is, therefore, reversed and.judgment is rendered overruling the pleas. The cause is remanded to the district court for further proceedings.

      . Although defendants raise this by counterpoint rather than by cross-point, we must address it because our jurisdiction is limited to dismissing the cause if the trial court lacked jurisdiction. Lone Star Finance Corp. v. Davis, 77 S.W.2d 711, 714 (Tex.Civ.App.-Eastland 1934, no writ), cited with approval in Barnes v. Bituminous Casualty Corp., 495 S.W.2d 5, 9 (Tex.Civ.App.-Amarillo 1973, writ refd n. r. e.).

      . In this respect see Burke v. Satterfield, 525 S.W.2d 950, 955 (Tex.1975) and In re Estate of Bateman, 528 S.W.2d 86, 88 (Tex.Civ.App.—Tyler 1975, writ ref'd n. r. e.). These cases hold that the county court lacks jurisdiction to compel an • accounting or a revised inventory from an independent executor, holding § 145 to be a limitation on § 5(c) in the case of an independent administration.


author: DUNAGAN, Chief Justice.

text:
    Charles BAGGETT, Appellant, v. STATE of Texas, Appellee.
    No. 942.
    Court of Civil Appeals of Texas, Tyler.
    Aug. 26, 1976.

      C. C. Divine, Houston, for appellant.
    Richard Bax, Sara McIntosh, Asst. Dist. Attys. of Harris County, Houston, for ap-pellee.
   DUNAGAN, Chief Justice.

This appeal involves the finality of an order terminating a parent-child relationship and an attempt to modify that order pursuant to Tex.Fam.Code Ann. Section 14.08.

On February 24, 1975, the Harris County Juvenile Court terminated the relationship of Charles and Mable Baggett with their minor children, Shirlee and Cheryl, and appointed the Harris County Child Welfare Unit as managing conservator. At that time, the Juvenile Court orally instructed the Welfare Unit not to place the children in adoptive homes for nine (9) months in order to give the parents an opportunity for rehabilitation. This instruction was not embodied in the February 24th order of termination. On November 14, 1975, Charles Baggett sought custody of the children by a petition to modify the termination order on the ground that he was rehabilitated. The Juvenile Court denied a hearing on that petition on the ground that it lacked jurisdiction. Charles Baggett appeals from that denial.

The November 14th petition was an attempt to set aside the February 24th order of termination. In the absence of a motion for new trial, the February 24th order became final, and the Juvenile Court lost jurisdiction of the cause, upon the expiration of thirty (30) days after the rendition. Tex.R.Civ.P. 329b. Appellant argues that the Juvenile Court’s oral instruction to the Welfare Unit prevented the February 24th order from becoming final and that the Juvenile Court retained jurisdiction to hear his November 14th petition. Appellant further argues that modification of all orders appointing a managing conservator is provided for by Section 14.08.

We cannot agree that the Juvenile Court’s oral instruction rendered the judgment interlocutory. In determining the finality of a judgment, we are limited largely to the judgment itself. Gregory v. Lytton, 422 S.W.2d 586, 590 (Tex.Civ.App.-San Antonio 1967, writ ref’d n. r. e.). When a judgment, not intrinsically interlocutory in character, is rendered in a cause regularly set for trial on the merits, without an order for a separate trial of issues, the finality of that judgment is, for appeal purposes, presumed. North East Independent School District v. Aldridge, 400 S.W.2d 893, 897 (Tex.1966). Moreover, we do not believe that the provision in Section 14.08 for modification of an order appointing a managing conservator applies to termination decrees under Chapter 15. “Decrees under Chapter 14 may be modified or changed from time to time . . . . A termination decree, on the other hand, is complete, final, irrevocable.” Wiley v. Spratlan, Tex., 543 S.W.2d 349, 352 (1976). It is noteworthy that the provision for modification in Tex. Rev.Civ.Stat.Ann. art. 2336, the predecessor of Section 15.05, was omitted from the current termination chapter.

The record indicates that the Juvenile Court intended to benefit the parents by instructing the Welfare Unit to refrain from placing the children in adoptive homes for nine (9) months. Nevertheless, appellant was undoubtedly misled by this instruction but for which he might have immediately appealed the termination order. Appellant’s failure to do so obviated that method of setting aside the termination order and relegated appellant to the extraordinary remedy of a bill of review.

The Juvenile Court properly held that it lacked jurisdiction to modify the termination order.

The judgment of the Trial Court is affirmed.