author: ROBINSON, Chief Justice.

text:
    Rose F. MATHES, Individually and as Independent Executrix of the Estate of Bill Nabors, Appellant, v. Etta KELTON, Appellee.
    No. 8839.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 29, 1977.
    Rehearing Denied Jan. 30, 1978.

      Jay U. Kirkman, Amarillo, for appellant.
    Miller, Miller & Russell, Dee Miller, Amarillo, for appellee.
   ROBINSON, Chief Justice.

Plaintiff Rose Mathes appeals from an adverse judgment giving defendant Etta Kelton recovery on a cross-action for a $6,000 promissory note secured by a diamond ring. Plaintiff has appealed from a judgment nunc pro tunc correcting a clerical error in the original judgment. Affirmed as modified.

Plaintiff Mathes filed suit to recover possession of certain furniture in the possession of defendant Kelton. Kelton cross-claimed on a $6,000 promissory note secured by a diamond ring, seeking foreclosure of her possessory lien on the ring. Trial was held without a jury and at the conclusion of the evidence, the Court announced judgment from the bench.

On December 3, 1976, the trial judge signed an order giving Kelton judgment on the note for $6,000, but stating that Mathes was entitled to immediate possession of the diamond ring. On December 13, 1976, the trial judge signed a second judgment which foreclosed Kelton’s possessory lien on the diamond ring and awarded her possession of the ring. The second judgment did not vacate the first judgment. The following day, December 14, Kelton filed a motion to correct the December 3 judgment on the ground that it contained a mistake awarding Mathes possession of the diamond ring. After notice and hearing the judge signed a corrected judgment on February 11, 1977, which stated that the December 3, 1976, order did not truly reflect the rendition of the Court in that it “inadvertently awarded possession of the diamond ring to plaintiff” Mathes.

Plaintiff Mathes contends that the trial court erred in signing and having entered the second and third judgments.

There can be only one final judgment in a cause. Tex.R.Civ.P. 301. The December 13 judgment is a nullity because it does not vacate the December 3 judgment. See Quintanilla, v. Seagraves Ford, Inc., 522 S.W.2d 274 (Tex.Civ.App.—Corpus Christi 1975, no writ). The trial judge apparently recognized that he had failed to vacate the first judgment and granted a hearing on the motion to correct judgment.

A trial court has plenary power over its judgments for 30 days after the judgment has been rendered or before a timely filed motion for new trial has been overruled. During this period, the trial court may on its own motion or on motion of any party vacate, modify, correct and reform such judgment or grant a new trial. Universal Underwriters Insurance Company v. Ferguson, 471 S.W.2d 28 (Tex.1971); Quintanilla v. Seagraves Ford, Inc., supra.

In the case before us the corrected judgment of February 11,1977, was entered after the trial court’s plenary power over its judgment had expired. However, a trial court may enter judgment nunc pro tunc to correct mistakes in the record of any judgment or decree. Tex.R.Civ.P. 316. A nunc pro tunc judgment may only be employed to correct clerical errors in the entry of a previously rendered judgment. Comet Aluminum Company v. Dibrell, 450 S.W.2d 56 (Tex.1970).

[I]f the judgment that the court actually renders at the time he renders judgment in the case is incorrectly recorded, such error is a clerical error, and the court has the power to correct his original decree, even after it has become final, by a nunc pro tunc decree in order to make the court records correctly show the judgment that was actually rendered.

Shepherd v. Estate of Long, 480 S.W.2d 51, 54 (Tex.Civ.App.—Fort Worth 1972, writ ref’d n. r. e.). Whether errors in the original judgment are clerical or judicial is a question of law. Finlay v. Jones, 435 S.W.2d 136 (Tex.1968).

At the hearing on the motion to correct judgment the trial judge stated that the December 3 judgment did not conform to his pronouncement from the bench at the conclusion of trial. He stated that he was interrupted in his pronouncement from the bench and that had he been allowed to finish, he would have said, “You’re entitled to your ring back if you paid the $6,000.” He further stated that he probably didn’t read the draft of the December 3 judgment, which was presented to him by plaintiff’s counsel, as closely as he should have.

Proof of a variance between the judgment announced and the judgment entered is not sufficient to justify correction by judgment nunc pro tunc. There must be a fact finding, based on evidence or the personal recollection of the judge that the variance was a clerical error rather than a judicial modification. Kostura v. Kostura, 469 S.W.2d 196 (Tex.Civ.App.—Dallas 1971, writ dism’d). In the case before us, the trial judge expressly stated that the variance between the December 3 judgment from his recollected pronouncement was not due to judicial modification. The judge stated at the hearing that he intended the same result at all times from the time of trial.

We conclude that the February 11 judgment corrected a clerical error and vacated the December 3 judgment. It properly ignored the December 13 purported judgment.

Next, after a consideration of all the evidence we overrule appellant’s contention that there was insufficient evidence to show that the ring was security for the note. The face of the note shows a written notation that a ring secures the obligation. A requested admission that Mathes delivered one diamond ring to secure the payment of the note was deemed admitted by the Court.

Also, Mathes contends that the trial court erred in refusing to accept her tardy filing of answers to Request for Admissions. On October 6,1976, counsel for Mathes received a registered letter containing Request for Admissions. Mathes did not respond until October 25. The trial court deemed the matters requested admitted.

A party has ten days after delivery in which to answer Requests for Admissions, or the matters requested shall be deemed admitted. Tex.R.Civ.P. 169. Rule 21a provides for three additional days where the postal service is involved. Therefore, Mathes had only until Thursday, October 21 to answer the Request for Admissions. In order to avoid the consequences of a failure to answer, a party must show legal or equitable excuses for his failure to answer. Burnett v. Cory Corporation, 352 S.W.2d 502 (Tex.Civ.App.—Dallas 1961, writ ref’d n. r. e.).

In the absence of a motion to permit a late filing of the answer, there can be no complaint of the action of the trial court in entering his order decreeing that the Request for Admissions of Relevant Facts be deemed answered affirmatively.

Hill v. Caparino, 370 S.W.2d 760 (Tex.Civ.App.—Houston 1963, no writ).

Under Rule 169 the trial court has a wide latitude in dealing with requests for admissions.

The trial court, under Rule 169, Texas Rules of Civil Procedure, has considerable discretion in refusing or granting a motion to deem admitted the matters inquired about in a request for admissions where there is neither answer nor denial within the time specified in the request. The trial judge, under the Rule, also has broad discretion in refusing or granting a motion of the non-answering party to permit the filing of an answer or denial to the request for admissions after the time therefor has expired. The ruling made by the trial court in the exercise of that discretion in either situation will be set aside only upon a showing of a clear abuse. Meyer v. Tunks, 360 S.W.2d 518 (Tex.Sup.1962); . . .

Schindler v. Ag Aero Distributors, Inc., 502 S.W.2d 581, 584 (Tex.Civ.App.—Corpus Christi 1973, no writ).

Plaintiff Mathes did not file a motion to permit late filing. We do not find that the trial court abused its discretion in ordering that the Request for Admissions be deemed admitted.

Appellant also contends that the trial court’s judgment of February 11, 1977 is erroneous because it fails to order a sale of the ring held as collateral. The failure of the trial court to order a sale may be corrected by this Court. Tex.R.Civ.P. 435. We conclude that judgment should be modified to order a sale of the ring. The secured party is required to look to the collateral in satisfaction of the judgment before other assets of the debtor may be reached. Bailey v. Block, 104 Tex. 101, 134 S.W. 323 (1911).

Accordingly, judgment of the trial court is modified to order a sale of the ring. As modified the judgment is affirmed.


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    George THIESS, Appellant, v. The DALLAS COUNTY STATE BANK, Appellee.
    No. 1088.
    Court of Civil Appeals of Texas, Tyler.
    March 9, 1978.
    Rehearing Denied May 10, 1978.
    A. Don Crowder, Crowder, Mattox & Morris, Dallas, for appellant.
    William H. Shields, McCracken, Shields & Taylor, Carrollton, for appellee.
   ON MOTION FOR REHEARING

McKAY, Justice.

We withdraw our earlier opinion delivered on January 24, 1978, and substitute this opinion in lieu thereof.

This is a summary judgment case in which the trial court granted the motion of appellee, The Dallas County State Bank, for summary judgment on a promissory note against appellant, George Thiess. The note was in the sum of $115,000.00, with an offset of $14,295.91 in certificates of deposit which were applied against the note by the bank. The note was signed by appellant as President of Electro Research, Inc. and by him individually.

In his amended answer, in his response to the motion for summary judgment, and in his affidavit appellant alleges (1) that the note was a corporate indebtedness of Elec-tro Research, Inc. and/or Chronex Watch Corporation, and his signature on the note was as agent for Electro Research, Inc.; (2) that the note was a renewal of an earlier corporate note which did not require his personal guarantee; (3) that the note was signed individually under duress; (4) that there was no consideration for the execution of the note because no new benefits flowed to him or to Electro Research, Inc., therefore, a failure of consideration; and (5) there was fraud in the inducement.

Although appellant assigns five points of error, we need only discuss point of error four.

By his fourth point of error appellant complains that there is insufficient summary judgment proof in that neither the original nor certified nor sworn copies of a pledge agreement referred to in appellee’s motion and affidavit was attached to such motion or affidavit. In appellee’s motion and in Hughes’ affidavit in support thereof, after stating that appellant is entitled to an offset of $14,295.91, is found this language: “In accordance with the terms of the pledge agreement, the certificates of deposit were liquidated and applied against accrued interest due under the promissory note.” While Rule 166-A(e) provides “sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith,” there were no sworn or certified copies of a pledge agreement or of certificates of deposit attached to appellee’s motion or affidavit. The Supreme Court in Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.1962), held that one must specially except or else waive complaint of his adversary’s failure to comply with Rule 166-A(e) by not attaching or serving a verified or certified copy of the instrument. In Youngstown, however, the instrument referred to in the affidavit appeared in the summary judgment record as an attachment to the pleadings.

In the case at bar, there were no copies of the certificates of deposit or the pledge agreement anywhere in the record. Therefore, appellee has failed to comply with Rule 166-A(e), and summary judgment was improper. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961); Grierson v. Sreenan, 560 S.W.2d 423 (Tex.Civ.App.-Beaumont 1977, no writ); Schuster v. Reid, 544 S.W.2d 800, 801 (Tex.Civ.App.-Austin 1976, no writ); Jackson v. Randall, 544 S.W.2d 439, 442 (Tex.Civ.App.-Texarkana 1976, no writ); Mallory v. Dorothy Prinzhorn Real Estate, 535 S.W.2d,371, 372 (Tex.Civ.App.-Eastland 1976, no writ).

Appellee’s failure to attach the documents referred to in its affidavit is a failure to discharge its burden to demonstrate that it was entitled to judgment as a matter of law. Appellant’s point four is sustained.

According, appellant’s motion for rehearing is granted, the summary judgment is reversed, and the cause remanded to the district court.


author: REYNOLDS, Justice.

text:
    Roland Dean BISHOP, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    No. 8873.
    Court of Civil Appeals of Texas, Amarillo.
    March 27, 1978.
    Rehearing Denied April 17, 1978.
    Appellant’s Second Rehearing Denied May 8, 1978.

      Bob Huff & Associates, Inc., Robert E. Teel, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Cecil C. Kuhne, Lubbock, for appellee.
   REYNOLDS, Justice.

A take-nothing judgment was rendered in this suit for workers’ compensation benefits for total and permanent incapacity after the jury found a specific injury for which compensation had been paid. The worker has not demonstrated reversible error. Affirmed.

Roland Dean Bishop was injured on 11 August 1972 during the course of his employment. Insurance Company of North America, the workers’ compensation insurance carrier, paid him compensation for 125 weeks.

Bishop instituted his action to recover benefits for total and permanent incapacity. He pleaded a general injury “to his low back, his left hip, left knee and left foot.” Answering, the insurance carrier specifically pleaded that Bishop’s injury was limited and confined to his left foot below the knee.

A jury found that (1) Bishop sustained an accidental personal injury or injuries to his body on or about 11 August 1972, which (4) resulted in total incapacity that (6) was temporary (7) for a duration of 125 weeks. The jury also found that (8) Bishop sustained or will sustain partial incapacity as a result of the injury or injuries, which (9) began on 1 November 1975, and (10) is permanent. The jury then answered, “It was confined” to special issue no. 16, which inquired:

Do you find from a preponderance of the evidence that the injury of August 11, 1972 was not confined to and limited to his left leg below the knee?

Giving the insurance carrier credit for the compensation paid and finding that Bishop is not entitled to recover further, the court rendered a take-nothing judgment. Bishop seeks to reverse the judgment with five points of error.

Attacking first the submission of and the answer to special issue no. 16 on the ground that there is no evidence to support either, Bishop further contends that the answer is contrary to the great weight and preponderance of the evidence. The argument is that all of the evidence shows that Bishop’s back was, to some degree, injured on 11 August 1972 and that his back problem originated at that time. An evidentiary summary is appropriate.

Bishop was employed in driving trucks and hauling heavy equipment. During his work on 11 August 1972, Bishop was standing on an iron rack that was being raised for loading on a truck. The rack fell, and Bishop was thrown to the ground some four feet below. Bishop said he fell on his back, the rack bounced and hit him, and it shattered his ankle. He was taken to a hospital where Dr. Ratliff operated on his left ankle. During the next 22 months, Bishop had a total of six operations on his ankle and was on crutches. The ankle was fused in January of 1975 and, as a result, the left leg is shorter than the right leg. Bishop returned to his same work for three months in mid-1974 and for about the last six months in 1975. A week before Christmas in 1975, he took and continues on a job hauling cattle.

Bishop testified that he noticed pain in his back from the start, but his claim filed with the Industrial Accident Board within six months of the injury made no mention of a back injury. An amended claim dated 5 February 1975 alleged an injury to the low back and left foot, leg, knee and hip. In an August 1975 pre-trial deposition, Bishop testified that the trouble with his back, hips and knee started in 1974 after he went back to work. Bishop said that he complained about his back to Dr. Ratliff on each visit, but there is nothing in Dr. Ratliff’s records to indicate any back complaints during the 76 recorded visits before 6 September 1975. On that date there is noted a complaint of tenderness and soreness in Bishop’s left leg, hip and back.

On 30 September 1975, Dr. Garland, a neurosurgeon who was the only medical witness who had examined or treated Bishop, saw Bishop on referral from Dr. Ratliff. Dr. Garland obtained X-rays of Bishop’s lower back and found them to be normal. The spaces between the bony vertebral column were well maintained without any evidence of slippage; there was no evidence of congenital or long-term type of abnormality; and there was no reason to believe that Bishop has a ruptured disc.

Dr. Garland performed a standard neurological examination with particular reference to the lower back and problems of the spinal cord and nerves leaving the lower back and entering the leg. He found that Bishop was tender in the lower back, particularly around the left hip joint in the back of the leg. As a preliminary diagnosis, Dr. Garland opined that Bishop was suffering from a mechanical strain or weakness in the lower back precipitated by a number of events, and particularly by the stress put on the back by the fact that Bishop was down in bed a long time, he “gave” to the ankle, and by the way he walked. Dr. Garland prefaced his listing of the events with the comment: “Certainly, the fall didn’t do him any good.” Shortly thereafter, he was asked, “Did you find any evidence or indication of direct injury from a fall or anything of that nature initially?” He replied, “No, sir.”

Mrs. Bishop, a nurse who has known Bishop since 1969 and married him 31 May 1974, testified»that Bishop’s back was giving him all kinds of problems and that in 1973 he said he was having problems with his back. Howard Warren Smart and Herbert Marquinn, Bishop’s former co-workers, and Jack Stewart, an employee of the company where Bishop worked before and after his injury, testified that Bishop complained about his back after his injury. The company field auditor, John H. Carver, testified that Bishop said the operation made his ankle stiff, and the limp and stiffness had caused his back to start hurting.

After considering the evidence under the standards of review required, we find some evidence of probative force to support the submission of and the answer given to special issue no. 16, and we cannot say that the answer is so against the great weight and preponderance of the evidence as to be wrong and manifestly unjust. The presence of evidence that gives support to an inconsistent answer does not justify the setting aside of the answer the jury determined to be the most reasonable. Holly Sugar Company of Hereford v. Aguirre, 487 S.W.2d 421, 425 (Tex.Civ.App.—Amarillo 1972, writ ref’d n. r. e.).

Next, Bishop submits that the court erred in deleting the words “a herniated disc in” from the report of Dr. Ratliff. The basis of the submission is that the entire report was admissible as a business or medical record to show Dr. Ratliff’s “complete agreement with the other physicians.”

As hearsay, Dr. Ratliff’s diagnosis is admissible by authority of the Business Records Act, Vernon’s Ann.Civ.St. art. 3737e, only if it is one upon which competent physicians would normally agree, Eubanks v. Winn, 469 S.W.2d 292, 296 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ ref’d n. r. e.); but, if the diagnosis is genuinely disputed, and necessarily rests in expert opinion, it is not competent evidence. Thomas v. International Insurance Company, 527 S.W.2d 813, 818 (Tex.Civ.App.— Waco 1975, writ ref’d n. r. e.). Accord, Loper v. Andrews, 404 S.W.2d 300 (Tex.1966). Because the hearsay diagnosis was directly disputed by Dr. Garland’s testimony, the court did not err in deleting it.

Lastly, Bishop asserts that the answers to special issues nos. 1, 8, 9 and 10 constitute a finding of a general injury which is in fatal conflict with the special issue no. 16 finding of a specific injury. We perceive no irreconcilable conflict.

Our law provides compensation for the incapacity for work resulting from a general injury and designated amounts of compensation for an injury to specific members of the body. An injury confined to a specific member of the body may result in total or partial incapacity, but the compensation is limited to the amount prescribed by the statute for that injury, Argonaut Insurance Company v. Newman, 361 S.W.2d 871, 874 (Tex.1962), and recovery cannot be extended by showing that, because of the specific injury, the worker is incapacitated from performing the usual tasks of a worker. Petroleum Casualty Co. v. Seale, 13 S.W.2d 364, 366 (Tex.Comm’n App.1929, holding approved).

Bishop pleaded a general injury; he did not plead, and he disclaims, that he sustained a specific injury which extended to and affected other general parts of his body. By its pleadings, the insurance carrier attempted to limit Bishop’s recovery to a specific injury.

Thus Bishop, to warrant a verdict of an incapacitating general injury under the pleadings, not only had to persuade the jury by a preponderance of the evidence that the pleaded concurrent injuries to specific and general portions of his body produced the general injury, but he had to go further and persuade the jury that his injury was not limited and confined to the left leg below the knee. By the special issue no. 16 answer, which has withstood Bishop’s attacks, he failed to establish a general injury. Accord, Banks v. Millers Mutual Fire Insurance Company of Texas, 476 S.W.2d 768, 771 (Tex.Civ.App.—Texarkana 1972, no writ).

As this appeal is postured, Bishop has not shown reversible error. His points of error are overruled.

The judgment is affirmed.

ON MOTION FOR REHEARING

Urging in his motion for rehearing that we erred in overruling his points of error, Bishop notes his difference with our evidential summary in four respects. He enumerates that: 1) his first claim was for injuries to the body in general; 2) in his pre-trial deposition he also answered, “Well, I have always had trouble with my back hurting ever since the accident, my lower back;” 3) in Dr. Garland’s testimony, he also stated, “I have no reason not to believe Mr. Bishop and he tells me that it [the back hurting] is dated back actually to the time of the injury;” and that 4) the witness Carver also gave testimony that Bishop said at times, the number of which Carver could not answer, “about his back bothering him.” In the interest of accuracy and fairness to Bishop, we add these items to our evidential summary.

The appellate record has been reconsidered in the light of the motion for rehearing. After reconsideration, we are not persuaded to depart from our original opinion.

The motion for rehearing is overruled.


author: PRESLAR, Chief Justice.

text:
    The UNITED STATES of America, Appellant, v. Carmen FLEMING, Appellee.
    No. 6608.
    Court of Civil Appeals of Texas, El Paso.
    March 29, 1978.

      John E. Clark, U. S. Atty., Michael T. Milligan, Asst. U. S. Atty., El Paso, for appellant.
    Owen H. Ellington, El Paso, for appellee.
   OPINION

PRESLAR, Chief Justice.

This case involves the question of whether military retirement pay is subject to garnishment, and the further question of the constitutionality of prejudgment garnishment. The trial Court rendered judgment for Appellee, Carmen Fleming, against the Defendant-garnishee, The United States of America, requiring the United States to turn over the military retirement pay of John Richard Fleming to Appellee, his. former wife, to satisfy a claim for unpaid child support in the amount of $4,170.00. We reverse and remand.

The question is raised as to whether military retirement pay is subject to garnishment. The record does not reflect whether the retiree, John Richard Fleming, is a resident of Texas or not. But whether he is or is not, we would hold that his military retirement pay is subject to garnishment. Appellant contends that military retirement pay is in the nature of current wages for personal services under Article 16, Sec. 28, of the Texas Constitution. That Article provides:

“No current wages for personal service shall ever be subject to garnishment.”

Article 4099 of Tex.Rev.Civ.Stat.Ann. reads as follows:

“No current wages for personal service shall be subject to garnishment; and where it appears upon the trial that the garnishee is indebted to the defendant for such current wages, the garnishee shall nevertheless be discharged as to such indebtedness.”

The interpretive commentary to the constitutional provision found in the Vernon’s edition of the Constitution makes clear that the purpose of the constitutional provision is to insulate the worker’s means of a livelihood. Monthly retirement payments would seem to fall within that purpose of' the provision; however, our research has disclosed no Texas case involving the question. Our conclusion that military retirement pay is subject to garnishment is based on the fact that the Texas Courts have repeatedly held that such retirement pay is “property.” In Cearly v. Cearly, 544 S.W.2d 661 (Tex.1976), the opinion of the Court leaves no doubt that under Texas law, military retirement pay is property.

“The same characterization of community property was first given to military retirement benefits by this Court in Busby v. Busby, 457 S.W.2d 551 (Tex.1970), which approved a holding in Kirkham v. Kirkham, 335 S.W.2d 393 (Tex.Civ.App.1960, no writ), that ‘the military retirement pay account was not a gift or gratuity but an earned property right which accrued to him by reason of his years in military service; the military retirement pay account was earnings of the husband during marriage, and as such, community property.’ This Court also cited with approval similar holdings in Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.1968, writ dism’d); Webster v. Webster, 442 S.W.2d 786 (Tex.Civ.App.1969, no writ); LeClert v. LeClert, 80 N.M. 235, 453 P.2d 755 (1969); Morris v. Morris, 69 Wash.2d 506, 419 P.2d 129 (1966). Other cases with similar holdings are Ables v. Ables, 540 S.W.2d 769 (Tex.Civ.App.1976, no writ); Freeman v. Freeman, 497 S.W.2d 97 (Tex.Civ.App.1973, no writ); and Miser v. Miser, 475 S.W.2d 597 (Tex.Civ.App.1971, writ dism’d).”

Military retirement pay, then, is not “current wages,” but is property and is not exempt from garnishment. However, in the case before us, we reverse the judgment of the trial Court because the procedure followed was violative of the due process rights of John Richard Fleming in that it was a prejudgment garnishment; also, it was carried out under an unconstitutional statute.

Appellee brought this action against the United States Government seeking to garnish her former husband’s military retirement pay. She alleged that she was divorced from John Richard Fleming in the District Court for El Paso in 1971; that by such judgment her former husband was ordered to pay $100.00 per month child support; that she had received no child support since October of 1973; and that the total in such arrearage of child support was the sum of $4,170.00. The former husband, John Richard Fleming, was not named as a party and nothing appears in the record to show that he was ever in any way notified of this claim against him. Whether or not the former husband is in arrears in the amount of $4,170.00 has never been judicially determined; it has not been put in issue between the one claiming it and the one obligated to pay it, and the former husband has not had the opportunity to defend against such claim. To the contrary, the claim is made against a third party, the United States Government, which answered that it was without sufficient knowledge to admit or deny that the ex-husband, John Richard Fleming, had failed to provide child support since October, 1973, in the accrued amount of $4,170.00.

The Supreme Court of Texas very recently ruled in the case of Smith v. Bramhall, 563 S.W.2d 238, 1978:

“The application for writ of error is denied with the notation, ‘Refused. No Reversible Error.’ Our action should not be interpreted as approving the conclusion of the Court of Civil Appeals that ‘unpaid child support is. . . .a debt for which judgment may be taken.’ 556 S.W.2d 112, 113. Section 14.09(c) of the Texas Family Code provides only that unpaid child support may be reduced to judgment and enforced by the same means as a judgment for a debt, not that such sums are debts.”

The allowance by the trial Court of this prejudgment claim in the amount of $4,170.00 is void as an unconstitutional taking of property under Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556, rehearing denied, 409 U.S. 902, 93 S.Ct. 177, 34 L.Ed.2d 165 (1972). Without any notice to the former husband, the Court has made a finding that the former husband is in arrears and ordered a third party to turn over property belonging to him to satisfy that finding. That is the procedure condemned as violative of due process under Fuentes v. Shevin, supra. The Texas Rules of Civil Procedure have since been changed and now provide for notice in such situations. (Rule 663a.) This ease was brought prior to the amendment of the Rules of Civil Procedure affecting garnishment in Texas.

In Southwestern Warehouse Corporation v. Wee Tote, Inc., 504 S.W.2d 592 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ), the Court held a portion of the Texas prejudgment garnishment statute unconstitutional. That is Article 4084, Tex.Rev.Civ. Stat.Ann., and the Court, in its opinion, discusses the relevant Texas Rules of Civil Procedure with regard to the applicability of the standard of Fuentes v. Shevin, supra.

The entire proceedings before us are almost all foreign to the requirements of our statutes and rules relating to garnishment, yet the sole point on appeal made by the garnishee does not touch on any of the obvious defects for which the Appellee is responsible. However, we believe that the absence of John Richard Fleming from the case because of lack of notice results in the absence of an indispensable party and presents fundamental error which we are required to notice. Petroleum Anchor Equipment, Inc. v. Tyra, 406 S.W.2d 891 (Tex.1966). As pointed out by that authority, jurisdiction over an indispensable party to a suit is as essential to the Court’s right and power to proceed to judgment as is jurisdiction of the subject matter. See Crickmer v. King, 507 S.W.2d 314 (Tex.Civ. App.—Texarkana 1974, no writ).

It was because of lack of notice to the Defendant/debtor and lack of hearing before the issuance of the writ that certain of the Rules of Civil Procedure relating to garnishment and Article 4084, insofar as it froze the property without notice and before judgment on the original claim, were declared unconstitutional. Southwestern Warehouse Corporation v. Wee Tote, Inc., supra. That case was limited to prejudgment garnishment proceedings.

This is how we classify the present proceeding. Section 14.09(c), Tex.Family Code Ann., now enables the Appellee to reduce the claim for child support to judgment and provides that the judgment may be enforced by any means available for the enforcement of judgments of debt. In this case, the claim for child support was reduced to judgment without any notice to the one obligated to pay it. Judgment without notice is the vice of this case.

Since certain of the garnishment Rules of Civil Procedure have now been amended to remove the constitutional defects, this case is reversed and is remanded to the trial Court to enable the Appellee to proceed under the amended rules effective January 1, 1978.


author: MURRAY, Justice. CADENA, Chief Justice,

text:
    Irma Z. RODRIGUEZ, Appellant, v. LIBERTY MUTUAL INSURANCE CO., Appellee.
    No. 15976.
    Court of Civil Appeals of Texas, San Antonio.
    April 5, 1978.
    Rehearing Denied May 3, 1978.
    Jerald Abrams, Knickerbocker, Abrams & Cowan, Eagle Pass, for appellant.
    David B. Person, Brock, Bingham & Person, San Antonio, for appellee.
   MURRAY, Justice.

This is a worker’s compensation case filed by Irma Z. Rodriguez, an employee of Williamson-Dickey Manufacturing Company, against Liberty Mutual Insurance Company, the worker’s compensation insurance carrier for the manufacturing company, seeking compensation benefits for an injury alleged to have been sustained on July 21, 1975, while on the job.

Trial was before jury. At the conclusion of the evidence, the trial court submitted its charge to the jury and in response to Question No. 1, to wit: “Did the plaintiff receive an injury on or about July 21, 1975?”, the jury answered no. The court, in its charge, found injury as “damage or harm to the physical structure of the body as such diseases or infection as naturally result therefrom, or the incitement, acceleration, or aggravation of any disease, infirmity, or condition, previously or subsequently existing, by reason of such damage or harm.” The principal question to be decided is whether the jury’s answer to Question No. 1 is so against the great weight and preponderance of the evidence as to be manifestly unjust.

Prior to July 21, 1975, plaintiff had worked some eight to ten years as a presser with the Williamson-Dickey Manufacturing Company and had missed some time from work in 1974 because of a back condition but had returned to work in November of that year and had worked continuously until the morning of July 21, 1975.

Plaintiff’s complaint that the jury’s answer to Special Issue No. 1 is against the great weight and preponderance of the evidence must be decided by us under the rules laid down by our Supreme Court in In Re King's Estate, 244 S.W.2d 660 (Tex.1951), wherein that court spelled out in the following language the proper guide where the great weight and preponderance of the evidence question is raised:

The question requires the Court of Civil Appeals, in the exercise of its peculiar powers under the Constitution and Texas Rules of Civil Procedure Nos. 451, 453, and 455, to consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial, if it thus concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust — this, regardless of whether the record contains .some ‘evidence of probative force’ in support of the verdict.

Plaintiff, Mrs. Rodriguez, testified that she had been working as a presser for the Williamson-Dickey Manufacturing Company and that on July 21, 1975, at approximately 10:00 or 10:30 a. m., while picking up a pair of pants to be pressed, she felt a great pain in her neck; that she called for her supervisor, Mrs. Morin, who came to her aid; that she told Mrs. Daniel that she had such a strong pain that she couldn’t see her; that Mrs. Morin took plaintiff to the first aid room and applied some alcohol to her neck and thereafter took her home; that the pain was so great that she called her husband who took her to the hospital; that Dr. De Hoyos treated her and gave her some pills and an injection for the pain; that she returned to Dr. De Hoyos who gave her a paper showing that she could not work; that she went to Dr. Simmons who prescribed pills for the pain and some kind of apparatus for the neck.

Natividad Cruz Pola, an employee of the company, testified that she saw plaintiff pick up a pair of pants and place them on the press, and when she pulled them to straighten them out she said “It hurts. It hurts.” On cross-examination, Mrs. Pola was asked whether she remembered an interview in Mrs. Daniel’s office on December 17, 1975, whereby she denied seeing the incident. Mrs. Pola answered “I don’t remember.”

Portions of the deposition testimony of Dr. De Hoyos, who initially treated plaintiff at the Maverick County Hospital, were read which showed that plaintiff complained of a severe headache, and also pain in her neck, especially to lateral movement to the head; that an examination revealed a muscle spasm in her neck; that in his opinion the muscle spasm could have been caused by an injury, or just the position of the neck, the sustained position of the neck, it could have been at work or at home; that plaintiff gave no indication or history that she had sustained an on-the-job injury; that there was no indication in the emergency room as to an on-the-job injury.

Plaintiff’s written interrogatories answered by Dr. Arturo Batres showed that no written history of Mrs. Rodriguez was recorded; that in his opinion the diagnosis of plaintiff’s physical condition was a cervical strain and two chronic lumbo-sacral strains. Maria Daniel, the plant manager of the company, testified that on the morning of the incident plaintiff was crying and indicated that she wasn’t feeling well; that her neck hurt and that she hadn’t slept very well the night before, that her daughter had a baby and she was very worried; that she wanted to see her doctor, and if she rested maybe she could come in after lunch or the next day; that plaintiff did not relate that she had received any injury as a result of an on-the-job accident or anything connected with her work.

Magdelina Morin, the inspection floor lady of the company, testified that on July 21, she took plaintiff to the first aid room and put some alcohol with paper towels on her neck; that she took plaintiff home when she indicated that she couldn’t work; that after the incident Mrs. Morin made a memo of the conversation with plaintiff, which states in part:

I asked her what was wrong, and she said she just couldn’t move her neck, that it hurt. I took her home, and on the way I asked her how she was feeling, and she said that the night before she had spent most of the night in the hospital with her daughter who was having a baby, but she never complained of hurting herself at work.

Mr. Ronald Tupper, the hospital administrator, testified that the hospital records indicated that plaintiff reported the claim on the health and medical insurance coverage of the plant.

The defendant offered the deposition testimony of Dr. Pedro Quiroga, a San Antonio orthopedic surgeon who treated plaintiff on or near January 20,1976; and that plaintiff complained of low back pains on the information form that was filled out; that the history related on her examination was that on July 21, 1975, she pulled up on a pair of pants while at work, and felt an acute pain in her neck; that in her history, she stated that she was seen by Dr. Simmons and she was told that she had arthritis of her neck; and that in Dr. Quiroga’s opinion the diagnosis of plaintiff’s condition is arthritis of her neck and low back and that her accident may have contributed to aggravate the arthritis.

When all the evidence, both favorable and contrary to the verdict is considered, we cannot say that the verdict is contrary to the great weight and preponderance thereof. We therefore hold that the testimony favorable to plaintiff, when considered in connection with all other evidence, is insufficient for us to hold that the verdict of the jury is so against the great weight and preponderance of the evidence as to be completely wrong and unjust.

Plaintiff next complains of the action of the trial court in failing to grant a new trial grounded on the violation by defense counsel of a motion in limine requiring him to not refer to or make mention of the fact that plaintiff had any preexisting or prior bodily ailments, condition, or diseases, with the exception of testimony of any prior back condition, without first approaching the Bench and obtaining a ruling from the court outside the presence and outside the hearing of the jurors in this case.

The purpose of a motion in limine is to point out to the trial judge certain eviden-tiary rulings that he may be called upon to make during the trial. It is not a ruling on evidence. Orders granting or denying a motion in limine do not preserve error unless evidence is offered during the trial. Error is preserved by a proper objection if the evidence is offered before the jury and the court overrules the objection, or by a proper bill of exception if the judge excludes the evidence. Biard Oil Co. v. St. Louis Southwestern Ry. Co., 522 S.W.2d 588 (Tex.Civ.App.—Tyler 1975, no writ); Redding v. Ferguson, 501 S.W.2d 717 (Tex.Civ.App.—Fort Worth 1973, writ ref’d n. r. e.).

The defendant offered deposition testimony of Dr. Pedro Quiroga, a San Antonio orthopedic surgeon who stated that he had taken X-rays of plaintiff’s cervical or neck area and was then asked what these X-rays indicated. The following then took place in open court:

MR. ABRAMS: Your Honor, may I approach the Bench?
THE COURT: What’s the objection?
MR. ABRAMS: I would like to make my objection to the Court Reporter out of the presence of the jury.
THE COURT: Let’s state our objection. Does this have to do with the production of the X-rays?
MR. ABRAMS: It has to do with the following testimony.
THE COURT: Well, just state your objection, Mr. Abrams.
MR. ABRAMS: Your honor, we have a motion before the court. We have rulings of the court that are being violated right and left.
THE COURT: Overruled. Go ahead.
MR. ABRAMS: I would like to make it clear for the record, that the court has denied me permission to approach the Bench and make my objection.
THE COURT: All right, so ruled. Let’s go ahead. Let’s proceed.

At this point, it was apparent that the court considered the following deposition testimony as not in violation of his pretrial order or that he considered the testimony admissible. The attorney for plaintiff made no further objections and the defendant then proceeded to read into evidence from Dr. Quiroga’s deposition that he had diagnosed a condition of cervical arthritis which was a normal part of aging. In the absence of a proper objection by the plaintiff, any error of the trial court is not preserved for review. Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331 (Tex.1963); Johnson v. Reed, 464 S.W.2d 689 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e.).

While we believe that plaintiff’s failure to properly object to osteoarthritis is determinative of the point, there is yet another reason why the point cannot be sustained. Before a judgment may be reversed because of the admission of improper testimony the record as a whole must show that the improper testimony was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Tex.R.Civ.P. 434 (1978); Condra Funeral Home v. Rollin, 314 S.W.2d 277 (Tex.1958); Aultman v. Dallas Ry. & Terminal Co., 260 S.W.2d 596 (Tex.1953). After a review of the record as a whole, we do not believe the error, if any, was reasonably calculated to cause and probably did cause an improper judgment. The judgment of the trial court is affirmed.

CADENA, Chief Justice,

concurring in result.

I concur in the result. In her brief, appellant merely argues that it is “conceivable” that Dr. Quiroga’s testimony “could have allowed the jury to speculate that it was an arthritic condition and not an on-the-job accident that caused her sudden pain on” the date of the alleged injury. A contention that a ruling of the trial court “conceivably” resulted in rendition of an improper judgment falls far short of satisfying the requirement, as a condition precedent to reversal, that the alleged error probably caused rendition of an improper judgment.


author: OSBORN, Justice. PRESLAR, Chief Justice,

text:
    Joe TREVINO and wife, Jovita Trevino, Appellants, v. E. E. SAMPLE and Edgar A. Wallace, substitute trustee, Appellees.
    No. 6721.
    Court of Civil Appeals of Texas, El Paso.
    April 5, 1978.
    Opinion on Motion for Rehearing Denied May 3, 1978.

      Joe Mike Egan, Jr., Kerrville, for appellants.
    Law Offices of Edgar A. Wallace, M. Scott Stehling, Kerrville, for appellees.
   OPINION

OSBORN, Justice.

This is an appeal from a judgment non obstante veredicto in a case arising out of the refinancing of a note and a subsequent attempted foreclosure of a lien on a house in Kerrville. The Appellants brought suit initially to enjoin a sale under a deed of trust. A temporary injunction was granted pending a trial on the merits. The case was tried upon theories of breach of a confidential relationship, fraudulent misrepresentations and usury. The jury found for the Appellants on the first two theories, and found actual and exemplary damages and a sum for attorney’s fees. We affirm the judgment entered n. o. v.

It is necessary to review many of the facts from a week-long trial, which included over twenty witnesses and nearly fifty exhibits. Joe Trevino and wife, Jovita, lived in Kerrville for many years. Mr. Trevino could not read, write or speak the English language. His wife could speak and understand English, but they both were without any formal education. Joe worked as a sheep shearer, and his wife did domestic work and was employed occasionally at the Kerrville State Hospital. Each summer, they usually travelled to the northeast part of the United States to do migrant farm work for about four months, always returning to Kerrville. In 1958, they bought a small house in Kerrville from A. L. Lewis. They paid partly in cash and signed a note for $1,625.00, which was payable in monthly installments of $20.00 each.

E. E. Sample is also a longtime resident of Kerrville and has known Mr. and Mrs. Trevino for many years. He owns some real estate and operated a small loan business for several years.

In 1964, Mr. Sample made a loan to Mr. Trevino to be used for the purchase of a truck. In 1966, he made a loan to Mr. Trevino to be used for the purchase of an automobile. In April, 1967, he rented a house to Mr. and Mrs. Trevino because the family was too large for the one they had purchased from Mr. Lewis nine years earlier. At that time, Mrs. Trevino began to rent the house they owned and use the rent money to make the note payments to Mr. Lewis. Shortly thereafter, Mr. Lewis moved to Cuero and it was difficult for Mrs. Trevino to make her cash payments to him. She asked Mr. Sample about refinancing her note with him and continuing to use the rent money to make her monthly payments. At that time, the balance on the Lewis note was $1,426.76. Mr. Sample agreed to refinance the Lewis note and, on July 3, 1968, the Trevinos executed a new note to Mr. Sample for $1,999.26, with monthly payments of $35.00 each. In addition to paying off Mr. Lewis, the new note included sums necessary to pay back taxes, purchase a title policy, pay attorney’s fees and recording fees.

A few days after the note and deed of trust were executed, Mr. and Mrs. Trevino left Kerrville for nearly four months to do migrant farm work and did not return to Kerrville until late October or November, 1968. They then remained in Kerrville until March 6, 1969, when they moved to Indiana where they have continued to live since that time. During the time they lived in Kerrville, Mrs. Trevino had at various times borrowed small cash sums from Mr. Sample which were paid back at the end of the month. When she worked at the State Hospital, she regularly borrowed money from Mr. Sample and signed an authorization for him to pick up and endorse her check each month to apply toward the payment of sums she had borrowed. Out of these checks, Mr. Sample was, on occasions, paid the $35.00 monthly note payment. No payments were made by Mr. or Mrs. Trevino on the note after they moved to Indiana in 1969.

It was the contention of Mrs. Trevino that part of the agreement in connection with refinancing the note with Mr. Sample was that he would rent the house each year while she and her husband were out of the State doing migrant farm work. Mr. Sample denied that any such agreement was made. In this connection, Mrs. Trevino testified as follows:

“Q. What was your understanding of what your arrangement with Mr. Sample was on the refinancing?
“A. The only thing I suggest to him, ‘If you refinance my house,’ that ‘whatever I get from rent on the house would be added to the note’ — to his — you know, to the note he was going to refinance me. That was my understanding between me and him. And I talked to Joe about it, and Joe say, ‘Okay, whatever we get from the rent, we can add it into the — as payment into the note.’
“Q. Okay, was there any discussion between you and Mr. Sample about the house rent when you’d be out of town?
“A. Yeah, we talk about it, and I told him that whenever I’m out of State — He knew I was going out of the State for four months out of the year, so, I told him that anytime I’m out of town, he have the right to collect rent to put it into the note.
“Q. What did he say?
“A. ‘All right.’"

Mr. Sample did in fact rent the house, but there were occasions when it was vacant and the note payments were not made. On some occasions, he applied the rent money to pay debts incurred in making repairs on the house. On one occasion, he telephoned Mrs. Trevino in Indiana and advised her that the house was vacant, but she was unable to return to Texas at that time. Later, the family came to Kerrville, but she could not locate Mr. Sample. A letter advising of default and foreclosure was first sent in 1974. There was no sale at that time. In October, 1975, another letter giving notice of a foreclosure sale was sent to Mr. and Mrs. Trevino. At that time, they retained counsel and, in November, 1975, obtained a temporary injunction to enjoin any sale. The trial on the merits followed in April, 1977.

The jury found: (1) a confidential relationship existed between the parties when they discussed refinancing the Lewis note and when the Sample note was signed; (2) that Sample abused his confidence by failing to disclose to Jovita Trevino the significant aspects of the Lewis note transaction prior to having the Sample note and deed of trust signed; (3) that Mr. and Mrs. Trevino would not have signed the Sample note and deed of trust except for the abuse of confidence; and (4) this resulted in injury to Mr. and Mrs. Trevino. They also found: (5) that prior to the signing of the note and deed of trust, Sample represented that he would keep the property rented and collect the rent when the Trevinos were out of State; (6) that such representations were made by Sample with the intention that they would not be kept; (7) that such representations were believed and relied upon by the Trevinos; and (8) that such representations were a material inducement to the Trevinos in executing the note and deed of trust. The jury also made findings favorable to the Appellants with regard to the failure of Mr. Sample to properly credit some rental payments, the damages which they sustained, and attorney’s fees.

The critical issues in this appeal are Issues Nos. 1 and 5. By the answer to the first issue, the jury found that a confidential relationship existed between Mr. Sample and Mrs. Trevino when they discussed financing the Lewis note and when the note payable to Sample was executed. The Appellants alleged in their last amended pleading that they trusted Mr. Sample explicitly, and that there existed a “fiduciary relationship” between these parties. The trial Court concluded that there was no evidence to support the jury’s answer to Special Issue No. 1.

To sustain the action of the trial Court in entering judgment non obstante veredicto, it must be determined that there is no evidence having probative force upon which the jury could have made the findings relied upon. Burt v. Louchausen, 151 Tex. 289, 249 S.W.2d 194 (1952). In passing upon this issue, all testimony must be considered in a light most favorable to the party against whom the judgment was entered, and every reasonable intendment deducible from the evidence is to be indulged in such party’s favor. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962).

The Courts of this State have long recognized that confidential relationships may arise not only from the technical fiduciary relationships such as attorney-client, trustee-cestui que trust, and partner-and-partner, which create such relationships as a matter of law, but they may also arise from moral, social, domestic or purely personal relationships. Thigpen v. Locke, 363 S.W.2d 247 (1962). But this case does not involve a close personal family relationship between two families as existed in Holland v. Lesesne, 350 S.W.2d 859 (Tex.Civ.App.—San Antonio 1961, writ ref’d n. r. e.). Nor does it involve a professional and close personal friendship as existed between the parties in Kalb v. Norsworthy, 428 S.W.2d 701 (Tex.Civ.App.—Houston [1st Dist.] 1968, no writ).

In the case at bar, the parties always dealt with each other in “arms-length” transactions involving loans made by one party to the other. Although it may have been financially unwise for Mrs. Trevino to refinance the note with Mr. Sample and enter into a new note which was in a larger principal sum, with larger monthly payments and a higher interest rate, nevertheless, all of these facts were evident on the face of the note that was signed in a transaction which originated at the request of Mrs. Trevino, and not Mr. Sample. Certainly, there was no wrongdoing upon his part in requiring back taxes be paid. It is customary for lenders to receive title policies covering the land on which a lien is given as security for a loan. Obviously, it was necessary to pay attorney’s fees and recording fees. Quite possibly, Mr. and Mrs. Trevino did not understand these additional charges which did substantially increase the size of the new note as compared to the old one. But Mrs. Trevino did acknowledge in her testimony that she was told that “that note has gone from fourteen to nineteen hundred because there was taxes — I mean there was interest going into that note, and other things had to be taken care of.”

In Thigpen v. Locke, supra, the Court reaffirmed that principle that parties to a contract have an obligation to protect themselves by reading what they sign and, absent fraud, may not excuse themselves from the consequences of failing to meet that obligation because they unwisely trusted the other party. We believe the following language from the opinion in that case is controlling in this case. There, the Court said:

“Taking the testimony as a whole and most favorably to the respondents, we hold that in this case there is not such evidence of justifiable trust and confidence as will create a fiduciary relationship. We may assume that respondents did trust Mr. Thigpen; they have testified so time and time again, but mere subjective trust alone is not enough to transform arms-length dealing into a fiduciary relationship * * *.
“Our holding in no way detracts from the principle that a relationship of trust and confidence may be shown to arise informally from purely personal relationships. All we hold is that respondents do not testify to facts — other than their own subjective feelings — which show that their relationship with Thigpen was anything more than a debtor-creditor relationship.”

Also see Cockrell v. Craugh, 338 S.W.2d 516 (Tex.Civ.App.—Austin 1960, no writ), where, in the opinion on motion for rehearing, the Court found that no confidential relationship existed where good friends who “ ‘had utmost trust and confidence in him’ ” dealt with each other at arms length.

We overrule the first point of error and sustain the trial Court’s finding that there is no evidence to support the answer to Special Issue No. 1. It is not necessary that we consider Issues Nos. 2, 3 and 4, which were conditioned upon a favorable answer to the first issue.

We now turn to a consideration of Special Issue No. 5 and the jury finding that Sample represented to the Trevinos that he would keep the property in question rented and collect the rentals whenever the Trevinos were out of State. We review this finding under the same rules as applied to our review of the first issue.

Mr. Trevino testified that Mr. Sample did rent the house during the four months they were gone in 1968. He did not testify to any arrangement with or representations by Sample prior to executing the note and deed of trust. Mr. Sample testified that he “made no agreement in any way to manage that property or look after it for them.” The only other witness with regard to this issue was Mrs. Trevino. As noted earlier in this opinion, she testified as to an understanding that “ ‘whatever I get from rent on the house would be added to the note’— to his — you know, to the note he was going to refinance me. That was my understanding between me and him.” She went further and said “I told him that anytime I’m out of town, he have the right to collect rent to put it into the note.” She also testified that just before they left for Indiana in 1968, she told Mr. Sample: “ ‘If you find any renters, to rent the house;’ that he had the right to do it in order to get that note back paid.” This statement does not indicate any agreement on his part to be responsible for keeping the house rented, but even if it did, such conversation occurred after, not before, the note and deed of trust were executed.

She did testify with regard to repairs made to the house and an understanding that whenever she was gone, he would take care of the house. But there is no contention that he did not take care of the house; in fact, repairs were continually made and a new roof was installed and a hot water heater was installed, along with repairs to the plumbing. We conclude that there was no evidence to support the jury’s answer to Special Issue No. 5, and the trial Court properly disregarded that finding. It is not necessary to consider Special Issues Nos. 6, 7 and 8, which were conditioned upon a favorable answer to Special Issue No. 5. Point of Error No. 2 is overruled.

Since all other issues were conditioned upon the favorable findings to Special Issues Nos. 1 through 4, or 5 through 8, those issues become immaterial to a decision in this case. It likewise becomes unnecessary to consider the other points of error. The judgment of the trial Court is affirmed.

ON MOTION FOR REHEARING

PRESLAR, Chief Justice,

dissenting.

I respectfully dissent and would hold that there is some evidence to support the jury’s finding on Special Issue No. 1 that a confidential relationship existed.


author: O’QUINN, Justice.

text:
    Eugenia ROBERDEAU, Appellant, v. Eugenia Izard JACKSON et al., Appellees.
    No. 12688.
    Court of Civil Appeals of Texas, Austin.
    April 5, 1978.

      Allan I. Schneider, Giddings, for appellant.
    Louis Scott Wilkerson, Sam R. Perry and William D. Brown, Sneed, Vine, Wilkerson, Selman & Perry, Austin, for appellees.
   O’QUINN, Justice.

Eugenia Roberdeau, independent executrix under the will of Lena Castleman, brought this action for declaratory judgment to construe provisions of the will, under which both Eugenia Izard Jackson and Eugenia Roberdeau now claim interests which are conflicting. (Art. 2524-1, sec. 2, V.A.C.S.).

The testatrix died in July of 1947, and was survived by Fay Jones, a half-sister, and two nieces, Eugenia Roberdeau and Beatrice Vaughan. Fay Jones died in the 1960’s, and her interest under the will is not an issue in this suit.

Beatrice Vaughan died in 1976, survived by her daughter Eugenia Izard Jackson, who in this suit claims a vested one-half interest in the Castleman estate. Eugenia Roberdeau claims that she alone is “entitled to all of the proceeds of the estate of Lena Castleman during her lifetime and after her death said estate shall then be vested in the contingent remainderman.”

The provision of the Castleman will giving rise to this controversy contained a bequest to Fay Jones, the half-sister, not involved in this suit, but which is included in full quotation of paragraph under review:

“FOURTH: If at the expiration of ten years after my death, my said half-sister, Fay Jones, shall not be dead, my said two nieces shall continue to pay to her said sum of One Hundred Dollars ($100.00) each month from my said estate so long as she may live; but in the event my said half-sister, Fay Jones, shall be dead at the expiration of ten years after my death or when she thereafter dies, my nieces, Eugenia Roberdeau and Beatrice Vaughan, share and share alike, shall then be entitled to life estates in all of my property, and upon their deaths it is to then go to the child or children, share and share alike, of my said nieces; but if neither of said nieces have any living children at the time of their deaths, I direct that my estate shall be divided equally between the Austin-Travis County Tuberculosis Sanitorium and the Chil-drens’ Home in Austin.”

Under this paragraph of the will, Eugenia Roberdeau contended that, with the death of Beatrice Vaughan, she succeeded by right of survivorship to a life tenancy in the entire estate and was entitled to all proceeds from the property. Eugenia Izard Jackson asserted that she had inherited a remainder interest in one-half of the estate in fee simple upon the death of her mother.

Upon trial before the court without aid of a jury, the court found that the will of Lena Castleman created two life estates in the testamentary estate, subject to the charge in favor of Fay Jones which is now fully discharged, and that upon the death of Beatrice Vaughan in 1976 her undivided half of the Castleman estate, held in life tenancy, became vested in fee in her daughter. The other undivided half of the Castle-man estate, held by Eugenia Roberdeau in life tenancy, remained in her for life. The court incorporated such orders in the judgment as were necessary to direct administration of the estate in accord with the findings.

Eugenia Roberdeau has appealed and brings the single point that it was error to hold that the will created two separate life estates. We will overrule the point of error and affirm judgment of the trial court.

The main thrust of appellant’s contention on appeal lies in the argument that the terms “upon their deaths” and “at the time of their deaths,” as used in the will indicating the time at which the remainder interests would come into being, indicate that a joint tenancy in a life estate was intended, with the right of survivorship in the niece living at the death of the other. Appellant insists that this construction is necessary because the remainder interest is contingent upon existence of a living child of Roberdeau or Vaughan at the death of the survivor of them, and this class, it is argued, cannot be determined until the death of Roberdeau.

As early as 1840 in Texas “ . . . the right of survivorship between joint tenants was abolished . . . ” (Ross v. Armstrong, 25 Tex.Supp. 354, 370-1 (I860)), and in 1889 the Supreme Court of Texas held that under an existing statute the common law estate known as joint tenancy was abolished. Peterson v. Fowler, 73 Tex. 524, 11 S.W. 534 (1889); Art. 1655, Rev.St.1879. Since 1848 Texas has had a statute abolishing joint tenancies, and the current statute is Section 46, Texas Probate Code, a section taken directly from Article 2580, Rev.Sts. 1925. See 3 Gammel, Laws of Texas 132; Act of March 18, 1848.

Section 46, from which is omitted here the proviso allowing survivorship agreements not pertinent in this case, prescribes:

“Where two (2) or more persons hold an estate, real, personal, or mixed, jointly, and one (1) joint owner dies before severance, his interest in said joint estate shall not survive to the remaining joint owner or joint owners, but shall descend to, and be vested in, the heirs or legal representatives of such deceased joint owner in the same manner as if his interest had been severed and ascertained.” (Sec. 46, as amended 1969).

Paragraph FOURTH of the Castle-man will contains no language providing, or implying, rights of survivorship necessary to rebut the statutory presumption that a mere tenancy in common is granted. Use of such words as “share and share alike,” or “jointly,” is not sufficient to create the right of survivorship in the absence of words of survival. Weems v. Frost National Bank of San Antonio, 301 S.W.2d 714,718 (Tex.Civ.App. El Paso 1957, writ ref’d n.r. e.); 46 A.L.R.2d 523, sec. 2; 20 Am.Jur.2d Cotenancy and Joint Ownership, sec. 13.

Texas cases which have held that a joint tenancy has been created, overcoming the statutory presumption, have stressed the importance of an express grant of the right of survivorship. Chandler v. Kountze, 130 S.W.2d 327 (Tex.Civ.App. Galveston 1939, writ ref’d). We find that the Castle-man testamentary disposition neither created a joint tenancy nor a right of survivor-ship and therefore cannot overcome the statutory presumption.

Appellant asserts without authority in support that the testatrix intended a joint tenancy with right of survivorship. It is settled that in arriving at the intention of the testatrix, the inquiry must be to ascertain what the words of the testatrix express and not to discover what the testatrix meant apart from the language found in the will. Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885, 888 (1960); Davis v. Wilson, 548 S.W.2d 483, 486 (Tex.Civ.App. Austin 1977, no writ).

Appellant contends that the remainder interest in the Castleman estate is contingent on survival, beyond the deaths of both the nieces, by a child of either of them, and that this class cannot be determined until the death of appellant. This view is contrary to settled law in Texas. The Supreme Court held in 1948, “It is well settled that a remainder is vested where there is a person in being who would have an immediate right to the possession upon the termination of the intermediate estate.” (Emphasis added) Chadwick v. Bristow, 146 Tex. 481, 208 S.W.2d 888, 891 (1948). Lena Castleman made her will in 1945 and died in 1947. The remainder provided in her will vested at the death of the testatrix, since Eugenia Izard Jackson was eleven years old at that time, having been born in 1936.

The judgment of the trial court is in all things affirmed.

Affirmed.


author: McDONALD, Chief Justice.

text:
    Victor RICHMAN et ux., Appellants, v. Buddy WATEL, Appellee.
    No. 5879.
    Court of Civil Appeals of Texas, Waco.
    April 6, 1978.
    Rehearing Denied May 11, 1978.
    Calvin A. Barker, Jr., Dallas, for appellants.
    Ronald L. McKinney and Jerome L. Prager, Hoppenstein & Prager, Dallas, for appel-lee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiffs Richman from summary judgment they take nothing in suit for damages for breach of implied warranty of fitness of a new house they purchased from defendant builder-vendor Watel.

Plaintiffs Richman sued defendant Wa-tel, a builder-vendor of new homes, alleging plaintiffs purchased a new home from defendant May 24, 1965; that there existed an implied warranty on defendant’s part that the home was constructed in good workmanlike manner and was fit for the ordinary purpose of family residence; that on December 22, 1974 while plaintiffs were using the residence, negligently constructed by defendant, the floor in the front part of the home gave way making it unfit for the purpose of a residence. Plaintiffs sought damages for repairs, and for loss in market value of the house.

Defendant answered that the cause of action was barred by the Statute of Limitations.

Defendant moved for summary judgment asserting plaintiffs’ suit was based on negligent construction of the house and/or breach of warranty of fitness; that a written warranty delivered with the house warranted the house against defects in materials and workmanship for one year from purchase, and provided there were no other warranties on the property; and further that plaintiffs’ pleading was filed more than 4 years after purchase; thus being barred by the 4-year Statute of Limitations.

The trial court sustained defendant’s motion and rendered summary judgment plaintiffs take nothing.

Plaintiffs appeal contending:

1) The trial court erred in rendering summary judgment.
2) An implied warranty of fitness existed on the house as a matter of law.
3) Plaintiffs’ action based on implied warranty of fitness is a tort, therefore defendant’s contract defenses do not apply.
4) The trial court erred in rendering summary judgment because a fact issue exists as to the time the Statute of Limitations commenced to run.

On May 24, 1965 plaintiffs purchased a new house from defendant builder-vendor. At such time defendant gave plaintiffs a written warranty which limited defendant’s liability against defective conditions to a one-year period, and provided there were no other warranties made.

On December 22, 1974 the floor in the front room collapsed due to faulty construe-tion and improper design. Defendant failed to install air vents causing inadequate subfloor ventilation which caused the beams to rot causing the floor to collapse.

When defendant built and sold the new house to plaintiffs he impliedly warranted the house was constructed in good workmanlike manner and was suitable for human habitation. Humber v. Morton, Tex., 426 S.W.2d 554, 25 A.L.R.3d 372; Diana v. Parks, (Texarkana, Tex.Civ.App.) NWH, 433 S.W.2d 761; Moore v. Werner, (14 Houston, Tex.Civ.App.) NWH, 418 S.W.2d 918.

And the express written warranty which defendant furnished plaintiffs did not limit or exclude such implied warranty of fitness. Diana v. Parks, supra; Foremost Mobile Homes Mfg. Co. v. Steele, (Fort Worth, Tex.Civ.App.) NWH, 506 S.W.2d 646.

The breach of the implied warranty of fitness arising from the construction and sale of a new house is considered to be a tort rather than a contract concept. Humber v. Morton, supra.

Limitation (here the 4-year statute) commences on the breach of implied warranty when the buyer discovers or should discover the injury. Puretex Lemon Juice, Inc. v. S. Riekes & Sons of Dallas, Inc., (San Antonio, Tex.Civ.App.) NRE, 351 S.W.2d 119; Summers v. Bransford-Hinds Building Co., (Eastland, Tex.Civ.App.) NRE, 383 S.W.2d 947; Reliance Electric and Engineering Co. v. Carrier-Houston Corp., (1 Houston, Tex.Civ.App.) NRE, 445 S.W.2d 48.

And Atkins v. Crosland, Tex., 417 S.W.2d 150 holds:

“The test to determine when the statute of limitations begins to run against an action sounding in tort is whether the act causing the damage does or does not of itself constitute a legal injury, that is, an injury giving rise to a cause of action because it is an invasion of some right of plaintiff. If the act is of itself not unlawful in this sense, and plaintiff sues to recover damages subsequently accruing from, and consequent on, the act, the cause of action accrues, and the statute begins to run, when, and only when, the damages are sustained; and this is true although at the time the act is done it is apparent that injury will inevitably result.
“If however, the act of which the injury is the natural sequence is of itself legal injury to plaintiff, a completed wrong, the cause of action accrues and the statute begins to run from the time the act is committed, even where little, if any, actual damage occurs immediately on commission of the tort * * *

The failure of defendant to properly vent the foundation did not give rise to a cause of action at the time; thus, plaintiffs’ cause of action accrues and the statute of limitation begins to run when damages are sustained, here when the floor collapsed.

Plaintiffs’ contentions are sustained.

REVERSED AND REMANDED.


text:
    FARMERS STATE BANK OF HART, Texas, Appellant, v. Nora RAY, Appellee.
    No. 8849.
    Court of Civil Appeals of Texas, Amarillo.
    April 10, 1978.
    Rehearing Denied May 8, 1978.
    Gibson, Ochsner, Adkins (A. B. Hankins and Ira L. Edwards, Jr.), Amarillo, for appellant.
    Moran & Miller (Russel A. Moran), Dim-mitt, for appellee.
   ROBINSON, Chief Justice.

Plaintiff-appellee Nora Ray sued Farmers State Bank to recover $1850 which she claims was wrongfully paid out of her checking account upon an altered check bearing her signature. Trial was held without a jury; the court entered judgment for Mrs. Ray based in part on a finding that her failure to properly execute the check did not amount to negligence substantially contributing to the material alteration of the instrument. Reversed and rendered.

On or about May 7,1975, Robert Freeman came to the home of Mrs. Ray, an elderly woman living alone. Freeman gained entrance to her home by posing as an electric utility company serviceman. After examining several wall outlets, Freeman told Mrs. Ray that he would return after lunch to continue working on her electric service. He told her that he needed a check for $1.50 to cover the service charge, and would help her write the cheek. Freeman wrote the numbers “1.50” well to the right on the line provided, leaving considerable space between the dollar sign and the numbers. Mrs. Ray testified that she signed the check because it was written in ink and could not be changed, and also she wanted to get Freeman out of the house.

When Freeman left Mrs. Ray’s home, he filled out the rest of the check. He inserted the date and his name as payee, added the numbers “185” between the dollar sign and the numbers “1.50”, and wrote in the words “Eighteen Hundred Fifty-One and “/ioo” in the appropriate space. Freeman presented the check at Farmers State Bank within the hour, showed the teller two pieces of photo-identification, and cashed the check. Mrs. Ray testified that a couple of hours after Freeman left she became suspicious because she never had to pay a public utility serviceman before. She attempted to stop payment on the check, but before she contacted the bank, the check had been cashed.

Plaintiff relies on the case of Lockwood National Bank v. Jennings, 381 S.W.2d 682 (Tex.Civ.App.—Houston 1964, writ ref’d n. r. e.), which placed the loss on the bank in a similar situation. The rationale of that case was that the drawer of a check cannot foresee the commission of a crime by another. The bank argues that the enactment of the Uniform Commercial Code changed the law, and that plaintiff Ray should bear the loss because her negligence substantially contributed to the alteration of the instrument.

The trial court entered judgment for plaintiff based on the following conclusions of law:

1. The alteration of the check constituted forgery, and drawer cannot foresee or anticipate commission of crime by another, as held in Lockwood National Bank v. T. W. Jennings, 381 S.W.2d 682, and cases cited.
2. The conditions and circumstances under which the Plaintiff, Nora Ray, signed and delivered the check did not amount to negligence substantially contributing to the material alteration of the instrument, as required by Section 3.406 of the Uniform Commercial Code to constitute a defense.

Defendant bank challenges, inter alia, the trial court’s reliance on Lockwood National Bank v. Jennings and the legal and factual sufficiency of the evidence to support the trial court’s conclusion that Mrs. Ray’s negligence did not substantially contribute to the material alteration of the check.

Texas Business & Commerce Code § 3.406 (Tex. UCC 1968) provides:

§ 3.406. Negligence Contributing to Alteration or Unauthorized Signature
Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee’s or payor’s business.

The official U.C.C. Comments to § 3-406 provide further explanation:

1. This section is new. It adopts the doctrine of Young v. Grote, 4 Bing. 253 (1827), which held that a drawer who so negligently draws an instrument as to facilitate its material alteration is liable to a drawee who pays the altered instrument in good faith. It should be noted that the rule as stated in the section requires that the negligence “substantially” contribute to the alteration.
2. The section extends the above principle to the protection of a holder in due course and of payors who may not technically be drawees. ... By drawing the instrument and “setting it afloat upon a sea of strangers” the maker or drawer voluntarily enters into a relation with later holders which justifies his responsibility. In this respect an instrument so negligently drawn as to facilitate alteration does not differ in principle from an instrument containing blanks which may be filled.
3. No attempt is made to define negligence which will contribute to an alteration. The question is left to the court or the jury upon the circumstances of the particular cases. Negligence usually has. been found where spaces are left in the body of the instrument in which words or figures may be inserted.

U.C.C. § 3-406 changed the rule of Lockwood National Bank, i. e., that the negligence of the drawer cannot be the proximate cause of the loss because one cannot foresee the commission of a crime by another. The Code adopted a “substantially contributes” test of negligence, which is less stringent than a proximate cause standard. This test includes negligent conduct on the part of the drawer which previously had been viewed as too remote in the chain of causation to preclude recovery by the drawer. Dominion Construction, Inc. v. First National Bank of Maryland, 315 A.2d 69 (Md.App.1974); Bagby v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 491 F.2d 192 (8th Cir. 1974). The rationale underlying U.C.C. § 3-406 is that between two innocent parties, the ultimate loss should fall upon the person who first dealt directly with the wrongdoer and was careless in so dealing, thereby providing the wrongdoer with the means of carrying out the offense. Fidelity and Casualty Company of New York v. Constitution National Bank, 356 A.2d 117, 123 (Conn.1975). The trial court erred in basing judgment in part upon Lockwood National Bank v. Jennings.

The relevant evidence is undisputed. The copy of the check which was introduced in evidence and is before us on appeal shows that when plaintiff signed the check there were spaces left in the body of the instrument, which by their nature facilitated alteration. We conclude that the evidence establishes as a matter of law that plaintiff was negligent in signing the check. The trial court found that the bank acted in good faith and in accordance with reasonable commercial standards in paying the check. Thus under the provisions of U.C.C. § 3-406 plaintiff is estopped from asserting a claim against the bank.

We do not reach appellant-defendant’s remaining points of error. The judgment of the trial court is reversed and judgment here rendered that appellee take nothing by her action.


text:
    CURRY MOTOR FREIGHT, INC., Appellant, v. RALSTON PURINA COMPANY, Appellee.
    No. 8877.
    Court of Civil Appeals of Texas, Amarillo.
    April 10, 1978.

      Clayton & Stubblefield (Cleo G. Clayton, Jr.), Amarillo, for appellant.
    Walters & Associates (Patrick Brower), Lubbock, for appellee.
   ROBINSON, Chief Justice.

This is an appeal by the defendant Curry Motor Freight Lines, Inc. from a default judgment entered against it by a County Court at Law of Lubbock County, Texas. Appellant brings writ of error to set aside the default judgment for the reason that the record does not show jurisdiction of the trial court over the person of appellant. Reversed and remanded.

Ralston Purina recovered judgment against John H. Green, d/b/a Crane Feed & Supply, and on November 30, 1976, filed application for writ of garnishment against Curry Motor Freight, Inc. as garnishee. On December 28, 1976, default judgment was entered against Curry Motor Freight, Inc. On January 3, 1977, Curry Motor Freight Lines, Inc. filed an answer to the garnishment action. The answer showed a preparation date of December 23, 1976.

Appellant seeks review by writ of error, which constitutes a direct attack upon the default judgment. The question to be decided is whether there is a lack of jurisdiction apparent on the face of the record which would vitiate the trial court’s judgment. McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965); Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934 (1935).

Appellant argues, inter alia, that the trial court erred in granting a default judgment because both the writ of garnishment and the return on the writ were fatally defective. An officer’s return of a writ of garnishment is governed by the same rules applicable to the return of citations. Rule 663, Tex.R.Civ.P.; Jacksboro National Bank v. Signal Oil & Gas Co., 482 S.W.2d 339 (Tex.Civ.App.—Tyler 1972, no writ). Ordinarily, presumptions are made in support of a judgment (including presumptions of due service of citation when the judgment so recites) but no such presumptions are made in a direct attack upon a default judgment. McKanna v. Edgar, supra; Hanover Modular Homes of Taft, Inc. v. Corpus Christi Bank & Trust, 476 S.W.2d 97 (Tex.Civ.App.—Corpus Christi 1972, no writ).

For purposes of this appeal, we need only consider the officer’s return of citation, which stated:

Came to hand the 2 day of December, 1976, at 9:00 o’clock a. m. and executed on the 2 day of December, 1976, at 3:15 o’clock p. m. at Amarillo, in Potter County, Texas, by delivering to the within named Garnishee Curry Motor Freight: by serving Mr. Fred Hall (vice-president) in person a true copy of this writ, having first endorsed thereon the date of delivery.

This return is fatally defective because it does not state the manner of serving Curry Motor Freight. The identical form of return was held insufficient to support a default judgment in Jacksboro National Bank v. Signal Oil & Gas Co., supra. That court relied on Continental Insurance Co. v. Milliken, 64 Tex. 46, 47-8 (1885), wherein the Court stated:

[T]o state that an officer executed process by serving it upon a named person is not to state the manner of service, but to give only the legal conclusion of the officer as to the compliance of his acts with the requirements of the statute. It is to state no more than that he served process by serving it upon a particular person, the manner of service is left untold.

Accord, Peoples Funeral Service, Inc. v. Mallard, 337 S.W.2d 476 (Tex.Civ.App.—San Antonio 1960, writ ref’d); Hyltin-Man- or Funeral Home v. Hill, 304 S.W.2d 469 (Tex.Civ.App.—San Antonio 1957, no writ); Watson Van & Storage Company v. Busse, 451 S.W.2d 557 (Tex.Civ.App.—Houston [1st Dist.] 1970, no writ).

Appellee relies on the fact that appellant filed an answer in the name of Curry Motor Freight Lines, Inc. on January 3, 1977, said answer bearing on its face a preparation date of December 23, 1976, five days before the judgment. The relevant date is the actual filing date of the answer. See Rule 45(d) Tex.R.Civ.P. The answer was not filed until several days after the default judgment was entered. It is immaterial that appellant may have had actual knowledge of the existence of the suit and the issuance of the writ of garnishment. A defendant is not bound to take action until duly served. Investors Diversified Services, Inc. v. Bruner, 366 S.W.2d 810 (Tex.Civ.App.—Houston 1963, writ ref’d n. r. e.).

The trial court was without jurisdiction over the person of appellant when the default judgment was entered. In view of our disposition of this appeal, appellant’s remaining points of error need not be considered. The judgment of the trial court is reversed and cause remanded for trial.


author: DUNAGAN, Chief Justice.

text:
    William Edward POULTER, Appellant, v. Gail Margaret Airoldi POULTER, Appellee.
    No. 1120.
    Court of Civil Appeals of Texas, Tyler.
    April 13, 1978.
    Rehearing Denied May 4, 1978.

      G. Leroy Street, Geary, Stahl, Koons, Rohde & Spencer, Dallas, for appellant.
    Edmund Burke, Wallace P. Finfrock, El-dridge, Goggans & Weiss, Dallas, for appel-lee.
   DUNAGAN, Chief Justice.

This is a divorce case accompanied by child custody and property division issues. Gail Margaret Airoldi Poulter, appellee, sued William Edward Poulter, appellant, for divorce. Additionally, by virtue of her second amended original petition for divorce the wife, appellee, sought custody of the two children of the marriage of the parties, child support in the amount of $225 per child per month until each child attained the age of eighteen years, a division of the separate and community property of the parties, reasonable attorney’s fees and injunctive relief. The husband answered that he should be awarded custody of the children of the parties and sought child support from the wife commensurate with her ability to pay such support.

Trial was to the court without a jury. Judgment was entered granting the wife a divorce, awarding custody of both children to the wife, awarding child support from the husband in the amount of $300 per month per child, dividing the property of the parties and granting the wife an equitable lien on properties awarded to the husband, awarding the wife’s attorney’s fees and granting the wife certain permanent injunctive relief against the husband. The husband has perfected this appeal.

The appellant’s eighteenth point of error claims that the trial court erred in the manner in which judgment was rendered for the appellee. The trial court entered its original judgment on April 7, 1977. The appellant filed a motion for new trial complaining of this judgment on April 14, 1977. Subsequently, the trial court entered a corrected final judgment of divorce on May 6, 1977. On May 27, 1977, the trial court entered what it called an Order Concerning Hearing to Revise Corrected Final Judgment of Divorce, this order containing a statement that the corrected final judgment of divorce signed on May 6th is vacated without acting upon, granting or considering the motion for new trial filed by respondent (appellant). Finally, a revised final decree of divorce was entered by the trial court on June 9,1977, from which this appeal was taken.

It is well settled that a judgment becomes final thirty days after the rendition of the judgment or order overruling an original or amended motion for new trial. Tex.R.Civ.P. 329b, subd. 5; see also Reavley & Orr, Trial Court’s Power to Amend Its Judgments, 25 Baylor L.Review, 191, 205-206 (1973). The motion for new trial filed by the appellant did not have the effect of extending the time period beyond this thirty-day period because this motion for new trial complained only of the original judgment and when this original judgment was superceded by the corrected final judgment of divorce, the motion for new trial was ineffective. Home Fund, Inc. v. Denton Federal Savings & Loan Association, 485 S.W.2d 845, 848 (Tex.Civ.App.—Fort Worth 1972, no writ).

Since the motion for new trial was ineffective as to the corrected final judgment of divorce entered on May 6, 1977, the trial court had thirty days subsequent to May 6th to modify, amend or vacate the judgment that was entered on May 6th. The judgment of May 6th was vacated by the order entered on May 27, 1977. After the order entered on May 27th, there was no valid judgment existing in this cause. This was a trial before the court and since no judgment existed in the cause after May 27th the court was free to make any findings of fact deemed to be proper and to embody these findings of fact in a new judgment. This new judgment was entered on June 9, 1977.

The appellant cites the case of Sawyer v. Donley County Hospital District, 513 S.W.2d 106 (Tex.Civ.App.—Amarillo 1974, no writ), for the proposition that the trial court’s action of May 27th vacating the judgment entered on May 6th as being ineffective to extend the trial court’s jurisdiction longer than thirty days after May 6th. The Sawyer case deals with the situation in which a court suspended a judgment and thereby sought to extend its jurisdiction over the matter for more than thirty days after the rendition of judgment. In our case, the judgment was not suspended but was vacated. We think there is a fundamental difference in suspending a judgment and thereby holding its effectiveness in abeyance than in vacating a judgment and holding it of no force and effect. We think that the trial court’s action concerning these judgments was proper and the appellant’s eighteenth point of error is overruled.

The appellant asserts in his points of error nos. 1, 2, 3 and 4 that the trial court’s judgment improperly divested him of title to separate real property. The real property involved here is an apartment house located in Dallas, Texas. The appellant contends that part of the consideration for this property at the time it was bought in 1969 was a separate property debt owed to the appellant by the prior owner of the property. The appellant contends that he agreed to swap a cancellation of the debt that was owed to him by the prior owner of this property for the equity that the owner had built up in the property.

It is now recognized in this state that the title to separate real property may not be divested from one spouse and awarded to the other spouse in a divorce decree. Eg-gemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex.1977).

Property acquired by spouses during marriage is presumed to be community property, and the burden is on the party asserting otherwise to overcome such presumption by clear and satisfactory evidence. Wilson v. Wilson, 145 Tex. 607, 201 S.W.2d 226 (1947); Gonzalez v. Guajardo de Gonzalez, 541 S.W.2d 865 (Tex.Civ.App.—Waco 1976, n. w. h.). The appellant seeks to show that this is separate property by referring to an inventory sworn to and filed by the appellee in the papers of the cause. Without getting into what information this inventory contains, we feel that the inventory offers no legal support for the appellant’s contention. The inventory was not introduced into evidence and cannot be considered as such. Bokhoven v. Bokhoven, 559 S.W.2d 142 (Tex.Civ.App.—Tyler 1977, n. w. h.); Llast v. Emmett, 526 S.W.2d 288, 290 (Tex.Civ.App.—Tyler 1975, n. w. h.). This inventory is more closely related to answers for written interrogatories under Rule 168 than an admission in pleadings, and any proof contained in these inventories should have been offered into evidence as would be the case when dealing with written interrogatories.

There is no evidence to establish the amount of consideration furnished by the appellant’s separate estate to purchase the property in question. As set out in Tarver v. Tarver, 378 S.W.2d 381 (Tex.Civ.App.—Texarkana 1964, affirmed at 394 S.W.2d 780), at p. 387: “It is well settled law in this state that where there has been a commingling of separate funds or property with community funds or property, making it impossible to clearly trace and identify the separate contribution, the aggregate, or the assets acquired therewith, must be deemed community property. Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900; Rippy v. Rippy, Tex.Civ.App., 49 S.W.2d 494, writ refused.” We believe that the trial court’s finding regarding this property has not been shown to have been an abuse of discretion and the appellant’s points of error nos. 1, 2, 3 and 4 are all overruled.

The appellant in his fifth point of error complains of the trial court’s granting the wife a money judgment of $68,268 and in placing an equitable lien on all property awarded to the appellant to secure this judgment. The trial court’s action was based upon findings of fact that the community estate was entitled to be reimbursed for expenditures on separate property granted to the husband. The appellant asserts there are no pleadings to support the judgment in this respect.

We do not agree with the appellant’s contention. The appellee’s pleadings allege that she has a legal or equitable community interest in these properties. This contention, when taken in connection with the appellee’s prayer to divide the community property of the parties and to grant her all other relief to which she should be deemed to be justly entitled, furnishes sufficient pleadings to support the judgment.

It was not necessary to expressly pray for reimbursement to the community in the pleadings. In a divorce action, the trial court has authority to construe the pleadings of the parties concerning a division of the property more liberally than in other civil eases. Bagby v. Bagby, 186 S.W.2d 702, 704 (Tex.Civ.App —Amarillo 1945, n. w. h.). We believe the pleadings when construed in this manner adequately support the judgment. The appellant’s fifth point of error is overruled.

The appellant in his sixth and seventh points of error complains that the trial court had no evidence or insufficient evidence to order the community estate reimbursed for expenditures made on separate property and to order an equitable lien securing this reimbursement. We have examined the record and find no merit in either point of error. There is ample testimony that all but $10,000 of the community funds spent on the separate property in question was spent to reduce notes owed on purchase money. No enhancement in value need be shown when dealing with community funds spent on separate property to pay off notes evidencing purchase money. Dakan v. Dakan, 83 S.W.2d 620, 628 (Tex.1935); Bazile v. Bazile, 465 S.W.2d 181, 182 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ dism’d).

Regarding the remaining $10,000 the trial court ordered reimbursed to the community, there is ample testimony in the record to support the trial court’s fact finding that the house on Gaston Avenue had been enhanced in value at least $10,000 due to the expenditure of community funds. Points of error six and seven are overruled.

The appellant’s eighth point of error alleges that the trial court erred in not granting an offset in the amount of reimbursement ordered to the community estate since the appellant’s separate estate allegedly made a $10,000 contribution to the community estate. No finding of fact was made by the trial court concerning this contribution made to the community and none was requested by the appellant. The failure to request a finding of fact concerning this issue waives any error that might be present. Tidwell v. Lang, 531 S.W.2d 384, 386 (Tex.Civ.App.—Waco 1975, n. w. h.); Bokhoven v. Bokhoven, supra.

The appellant complains that there were no pleadings to support the trial court’s order of $300 per month per child as child support payments. The appellee in her pleadings asked that the amount of child support be set at $225 per month per child. We think the pleadings support the judgment. In matters concerning the support and custody of children the paramount concern of the court is the best interest of the children and the technical rules of pleading and practice are of little importance. Liethold v. Plass, 413 S.W.2d 698 (Tex.1967). See also Boriack v. Boriack, 541 S.W.2d 237, 242 (Tex.Civ.App.—Corpus Christi 1976, writ dism’d). Appellant’s twelfth and thirteenth points of error are overruled.

It appears from the record that the trial court’s judgment contains no provision that the child support payments contained in the decree will terminate upon the youngest child reaching the age of eighteen years. It is well settled that child support may not be awarded to support a child after the child reaches the age of eighteen years in the absence of specific findings showing special circumstances justifying such support. Article 14.05, Texas Family Code; Garza v. Fleming, 323 S.W.2d 152 (Tex.Civ.App.—San Antonio 1959, writ ref’d n. r. e.); Mial v. Mial, 543 S.W.2d 736, 738 (Tex.Civ.App.—El Paso 1976, n. w. h.); Neff v. Johnson, 391 S.W.2d 760, 762 (Tex.Civ.App.— Houston 1965, n. w. h.). No such findings were made in the instant case. We are of the opinion that the trial court’s judgment should be reformed to provide for the termination of the obligation to pay child support when the youngest child reaches the age of eighteen years. Ingram v. Ingram, 249 S.W.2d 86, 89 (Tex.Civ.App.—Galveston 1952, n. w. h.); Carter v. Barclay, 476 S.W.2d 909, 918 (Tex.Civ.App.—Amarillo 1972, n. w. h.); King v. Tubb, 551 S.W.2d 436, 445 (Tex.Civ.App.—Corpus Christi 1977, n. w. h.). To the extent that the appellant’s points of error 14 and 15 seek such a reformation, they are sustained.

The appellant in his sixteenth and seventeenth points of error claims that the trial court abused its discretion in setting the amount of child support at $300 per month per child. The setting of the amount of child support is a matter in the sound discretion of the trial court. Dennis v. Dennis, 512 S.W.2d 699, 701 (Tex.Civ.App.—Tyler 1974, n. w. h.); Schwartz v. Jacob, 394 S.W.2d 15 (Tex.Civ.App.—Houston 1965, writ ref’d n. r. e.); Madden v. Madden, 365 S.W.2d 427 (Tex.Civ.App.—Fort Worth 1963, n. w. h.). The fact that a trial judge may exercise his discretion or authority in a matter differently than an appellate judge would have done under similar circumstances does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959). After reviewing the entire record, we cannot agree that the trial court abused its discretion in setting the amount of child support payments. Appellant’s points of error sixteen and seventeen are overruled.

Appellant’s ninth, tenth and eleventh points of error are without merit. No abuse of discretion has been shown in naming the appellee managing conservator of the two minor children. Crapps v. Crapps, 546 S.W.2d 909 (Tex.Civ.App.—Austin 1977, n. w. h.).

The judgment is reformed to provide that appellant’s obligation to pay child support is terminated when the youngest child reaches the age of eighteen (18) years and as reformed is affirmed.

Judgment reformed and affirmed.