author: McCLOUD, Chief Justice.

text:
    Lorena HAAG, Appellant, v. Barbara Haag PUGH et al., Appellees.
    No. 4959.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 24, 1976.
    Rehearing Denied Dec. 23, 1976.
    Charles M. Beacham, San Antonio, Walter Groce, Corpus Christi, for appellant.

      Moses Goldberg and Steven Sinkin, Southers, Goldberg, Lyons & Huson, Inc., San Antonio, for appellees.
   McCLOUD, Chief Justice.

Plaintiffs, Barbara Haag Pugh, Edmund F. Haag, Jr., and Marvin Haag, sued defendant, Lorena Haag, to set aside a family settlement agreement dated September 5, 1973, distributing the Estate of Edmund F. Haag, Sr., who died intestate. The trial court, in a nonjury trial, set aside the settlement agreement. The court awarded plaintiffs their vested share of the estate as it existed at the time of the death of Edmund F. Haag, Sr. The judgment awarded plaintiffs the sum of $19,976.43, with interest at the rate of six percent from the date of Haag’s death until the date of judgment. Defendant, Lorena Haag, appeals. We reform the judgment and, as reformed, affirm.

Edmund F. Haag, Sr., died intestate on January 25, 1973, and was survived by his wife, Lorena Haag, and three children, Barbara Haag Pugh, Edmund F. Haag, Jr., and Marvin Haag, by a former marriage. Subsequent to the death of Edmund F. Haag, Sr., all of the parties met with and employed an attorney regarding the disposition of the estate.

At the time of the death of Edmund F. Haag, Sr., his estate consisted of numerous bank accounts, savings accounts, and certificates of deposit. Sixteen of these accounts were established in one of the following designations: (1) Edmund F. Haag, Sr.; (2) Lorena Haag; or (3) Edmund F. Haag, Sr., or Lorena Haag.

The trial court court concluded that the plaintiffs and defendant entered into the settlement agreement under a mutual mistake of fact that the bank accounts, savings accounts, and certificates of savings designated Edmund F. Haag or Lorena Haag with the right of survivorship to Lorena Haag, survived to defendant, and that plaintiffs had no legal rights to one-half of such accounts. The court concluded that these accounts did not validly create a right of survivorship in defendant, and that the balance of such accounts should be distributed according to the laws of intestate succession. The trial court also concluded that the account designated “Lorena Haag” did not survive to Lorena Haag and the balance of that account should be distributed according to the laws of intestate succession. The principal holding of the court was that the family settlement agreement of September 5, 1975, should be set aside because it was entered into on the basis of a mutual mistake of fact. The court also held there was a failure of consideration to the extent the plaintiffs received nothing that they were not otherwise entitled to receive under the laws of intestate succession. The trial court filed extensive findings of fact and conclusions of law.

Defendant’s first and second points of error are as follows:

“First Point
The trial court erred in failing to hold that the contract partitioning the estate of EDMUND HAAG, Sr., made and executed by all of the parties on September 5,1973, constituted a valid partition of all of the estate of EDMUND HAAG, Sr. and could not be set aside for want of consideration.
Second Point—
The trial court erred in its holding that there was a failure of consideration on the settlement agreement of September 5,1973 to the extent that plaintiff (appel-lees) received nothing that they were not otherwise entitled to receive under the laws of intestate succession. (Conclusion of Law No. 20).”

Defendant’s first point fails to comply with Rule 418, T.R.C.P. We have reviewed the statement and argument under the point as required in Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943), but nevertheless, conclude the point is too general and is insufficient to direct our attention to any particular error relied upon. Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956); Smith v. Weindorff, 287 S.W.2d 740 (Tex.Civ.App. — Beaumont 1956, no writ); DeBusk v. Guffee, 171 S.W.2d 194 (Tex.Civ. App. — Eastland 1943, no writ); Permian Corporation v. Trumbull Asphalt Co. of Delaware, 472 S.W.2d 555 (Tex.Civ.App. — Corpus Christi 1971, no writ); Maryland Casualty Company v. Goetz, 337 S.W.2d 749 (Tex.Civ.App. — Amarillo 1960, no writ).

We do note, however, that the case of Franke v. Cheatham, 157 Tex. 397, 303 S.W.2d 355 (1957) relied upon by defendant did not involve mutual mistake and, therefore, is not controlling.

Defendant’s second point complains of the trial court’s holding that there was a failure of consideration.

The principal holding of the trial court was the agreement should be set aside because of a mutual mistake of fact. The defendant failed to properly complain of this holding by the trial court.

In Williams v. Cassel, 515 S.W.2d 403 (Tex.Civ.App. — Austin 1974, no writ), the court said:

“. . . Where the judgment of the court rests upon two or more independent grounds, and appellant does not attack each, the judgment should be affirmed as resting on a ground not brought forward as error. Midway National Bank of Grand Prairie v. West Texas Wholesale Supply Co., 453 S.W.2d 460 (Tex.Sup.1970); State Farm Mutual Automobile Insurance Co. v. Cowley, 468 S.W.2d 353 (Tex.Sup.1971); Dorbandt v. Jones, 492 S.W.2d 601 (Tex.Civ.App.1973, writ ref’d n.r.e.).”

We, therefore, affirm the judgment of the trial court as to the award of $19,976.43.

Defendant also complains of the award of prejudgment interest from January 25,1973. By cross-point, plaintiffs contend the court erred in applying a six percent interest rate rather than nine percent. They point out that effective September 1, 1975, Article 5069-1.05, Tex.Rev.Civ.Stat. Ann., was amended to provide interest at nine percent. The rule regarding a change in the statutory rate of interest is stated in 25 C.J.S. Damages § 92(1) as follows:

“Change of legal rate. In cases where interest is allowed as damages, and not by reason of a contract, express or implied, for its payment, the interest for each period must be computed at the rate which was legal during that period, and statutes changing the rate will operate prospectively only. If the rate has been changed after the wrongful act or injury complained of, but before final determination, the interest should be computed at the former rate up to the time of the change in the law, and at the latter rate for the period thereafter.”

We think the proper rule to be applied in a case of this nature was approved in In re Baldwin’s Estate, 311 Mich. 288, 18 N.W.2d 827 (1945) wherein the court said:

“The general rule applicable is well stated in Second & Third St. Pass. Railway Co. v. City of Philadelphia, 51 Pa. 465, viz.:
‘The rule seems therefore to be this, that when a mutual mistake occurs between the payer and receiver of a sum of money, by which the whole has not been paid, or too much has been received, interest is not recoverable on the sum so withheld or received, unless sit-has been unjustly withheld or unjustly received. The party retaining the money by mistake, may well rely on the acquittance received or given, until the injured party makes known his claim and demands correction and payment. After such demand, if it be refused, and it turns out there was money due which ought to have been paid, it will bear interest from demand until paid. If there were concealment or design to mislead and withhold interest, interest would be recoverable for all the time. This is the doctrine of the cases; they turn on an unjust or innocent and mistaken withholding; in the former case interest is recoverable, in the latter it is not.’

We therefore hold that the executor should be surcharged with interest on $10,000 only from the date of demand in 1942.”

The instant case involves an innocent and mistaken withholding pursuant to a contract between the parties.

The only proper demand made by plaintiffs in the record before us was made in plaintiffs’ second original amended petition which was filed October 16,1975. The prejudgment interest, therefore, should run from October 16, 1975, to December 2,1975, the date of judgment, at the rate of nine percent per annum. We have calculated the interest to be $229.72.

The prejudgment interest of $3,395.98, as found by the trial cpurt, is reformed to be in the amount of $229.72. The judgment as reformed is affirmed.


source: Caselaw Access Project

author: PEDEN, Justice.

license: Public Domain

text:
    Ex parte A. R. BOYLE, Jr., Relator.
    No. 16838.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 2, 1976.
    Rehearing Denied Jan. 6, 1977.

      Kilgarlin, Dixon & Hancock, Warren E. Hancock, Jr., Houston, for relator.
   PEDEN, Justice.

In this original habeas corpus proceeding the relator, Mr. A. R. Boyle, Jr., seeks to be discharged from custody after being found in contempt of court for failure to pay child support in an “orderly, regular, and due manner.” He was ordered held for one day and until payment of court costs, including an attorney’s fee of $150. The record consists of the statement of facts, the application for writ of habeas corpus, and copies of the divorce decree, the contempt order, the docket sheet, the commitment order, and the child support records.

The relator contends in his petition for a writ of habeas corpus that 1) the commitment order is void because he was denied due process of law in that he did not have ten days’ notice of the hearing (as provided by § 14.09, Vernon’s Texas Family Code and Rule 308-A, Texas Rules of Civil Procedure), and 2) when the commitment order was entered he had overpaid the amount of child support by $150. In his brief he says the commitment order is void for the additional reasons that it improperly orders him to pay an attorney’s fee as a condition for release and that he was unable to comply with the order of child support. Relator is remanded to custody.

A habeas corpus proceeding is a collateral attack upon the order of commitment, and the relator is entitled to be discharged only if the judgment ordering him confined is void. Ex Parte Rhodes, 163 Tex. 31, 352 S.W.2d 249 (1961); Ex parte Hoover, 520 S.W.2d 483 (Tex.Civ.App.1975, no writ).

A court may enforce an order for support as provided in Rule 308-A, Texas Rules of Civil Procedure:

“In cases where the court has ordered periodical payments for the support of a child or children, as provided in the statutes relating to divorce, and it is claimed that such order has been disobeyed, the person claiming that such disobedience has occurred shall make same known to the judge of the court ordering such payments . . . Upon the filing of such statement, or upon his own motion, the court may issue a show cause order to the person alleged to have disobeyed such support order, commanding him to appear and show cause why he should not be held in contempt of court. Notice of such order shall be served on the respondent in such proceedings in the manner provided in Rule 21a, not less than ten days prior to the hearing on such order to show cause . . . Upon a finding of such disobedience, the court may enforce its judgment by orders as in other cases of civil contempt . . . ”

When served with notice of the contempt hearing, the relator was $550 in arrears. He paid that amount plus $150 more some six days after he was served with process and two days before the hearing in question.

The divorce decree had ordered the relator to pay child support on the 5th and 20th of each month “until the children with respect to whom payments are made shall attain the age of eighteen.” The court found the relator in contempt because of his failure to make the child support payments when they became due in defiance of the terms of the decree. The child support records indicate this was a frequent occurrence. The fact that relator was not in arrears at the time of the hearing does not render the court’s judgment void; the relator repeatedly failed to comply with the time provisions of the divorce decree.

The relator was served with the process on October 20, 1976, and the hearing was held on October 28, 1976. In support of his position that since he did not have ten days’ notice of the hearing the trial court did not have jurisdiction and he was deprived of due process of law, he cites Ex parte Davis, 344 S.W.2d 153 (Tex.1961) and Ex parte Cardwell, 416 S.W.2d 382 (Tex.1967).

The holding of a contempt hearing within less than ten days from the date of service of a show cause order is a procedural irregularity only. The court does not lack jurisdiction because the hearing was held within less than ten days. On the other hand, holding the hearing in less than ten days after service of notice may constitute a denial of due process. No clear and definite line can be drawn between that length of notice which will afford due process and that which will not. Each case must be evaluated on its own facts. Factors which, together, constitute a denial of due process are: only two days’ notice to a relator who was a deaf mute and thus had a difficult time communicating and understanding, who had no attorney, and who was not advised that he could have additional time to obtain counsel and prepare for trial, plus the failure of the trial court to permit the introduction of further evidence when tendered by counsel who had been promptly employed. Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153 (Tex.1961).

In our case the relator appeared at the hearing eight days after service of notice upon him, accompanied by counsel of his own choice, and participated fully in the hearing. We presume his attorney advised him of his right to a continuance for two days. He did not ask for one, object to the lack of notice, or challenge the jurisdiction of the court. He testified about various matters including his take-home pay and his financial condition, and had with him, when he testified, his pay stubs and four letters indicating he was past due on some of his other debts. It appears that he was ready and willing to have the hearing. We hold that there was no denial of due process.

Boyle next says that the order of commitment is void in that it improperly requires him to pay attorney’s fees as a condition for release from continued confinement, which fees were not authorized by Rule 308-A. He contends that he is not required to pay the attorney’s fee of the movant because 1) he was not in default of his obligation of support when the commitment order was entered, and 2) because the record does not reflect that the attorney for the movant was appointed by the court, arguing that Rule 308-A applies only to the fixing of a fee for a court-appointed attorney. We do not agree with either of these contentions. As to the first, it is clear that the relator was in default when cited and that he did not automatically purge himself of contempt by paying the arrearage. As to the second of these contentions, Rule 308-A provides that the judge of the court ordering the child support payments may appoint an attorney to represent the complainant, and also states:

“Except with the consent of the court, no fee shall be charged by or paid to the attorney representing the claimant for his services. If the court shall be of the opinion that an attorney’s fee shall be paid, the same shall be assessed against the party in default and collected as costs.”

We know of no logical reason why a movant should be unable to obtain help in paying an attorney’s fee for securing compliance with the court’s order unless the services of a court-appointed attorney were utilized, and we find nothing in Rule 308-A to so restrict the court. It would be easy for the court to appoint counsel already selected by the movant. In our case the record does not show whether the judge did or did not appoint the attorney who represented her.

The Supreme Court held in Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184 (1953), that the collection of an attorney’s fee allowed the complainant and charged as costs, as well as other costs in the proceedings, could be enforced by a contempt order.

“The attorney’s fee is but a part of the procedural remedy for enforcing substantive rights and the fee allowed as well as costs in the proceeding is incidental to and a part of the payments necessary for the support of the minors.”

See also Ex parte Savelle, 398 S.W.2d 918 (Tex.1966).

The relator also complains that the order of commitment is void in that it requires him to pay an attorney’s fee when none was requested by the movant in the motion for contempt.

The quoted second paragraph of Rule 308-A provides that except with the consent of the court, no fee shall be charged by or paid to the attorney representing the claimant for his services. The first paragraph of that rule requires a written statement, verified by the affidavit of the claimant, describing the claimed disobedience of the court’s order. It later states in that paragraph that “no further written pleadings shall be required.” It was within the court’s discretion to award the attorney’s fees. Further, in non-jury hearings issues tried by implied consent of the parties may be considered as if raised by the pleadings. Rule 67, T.R.C.P. The attorney for the movant asked for attorney’s fees during the hearing in our case. He stated that this was the fourth or fifth setting and asked for $200 attorney’s fee and court costs.

Relator’s last complaint is that the order of commitment is void in that he was without funds and was unable to comply with the order of child support. We review his testimony on this matter. He was late on his last child support payment because he didn’t have the money. When he received $1,000 from the proceeds of an insurance sale in October, he paid $762 of it for back child support. He tried to borrow money from institutions against that anticipated payment, but he had zero credit.

To order that one be imprisoned for an indefinite period in a civil contempt is purely a remedial measure. Its purpose is to coerce the contemner to do an act within his power to perform. Where he cannot perform the act which alone will purge him of contempt, the court is without power to imprison him for an indefinite term as punishment for an offense already committed. Ex parte De Wees, 146 Tex. 564, 210 S.W.2d 145 (1948).

In our case the relator was ordered confined for one day as punishment. He has made no showing that he is now unable to purge himself of the coercive part of his commitment by paying the costs of court, including an attorney’s fee.

It is ordered that the relator be remanded to the Sheriff of Harris County.


author: HALL, Justice.

text:
    Bryan BEAVERS, Appellant, v. Nelda Jean BEAVERS, Appellee.
    No. 5649.
    Court of Civil Appeals of Texas, Waco.
    Dec. 2, 1976.

      Sue Stepp, Ñaman, Howell, Smith & Chase, Waco, for appellant.
    Dan M. Francis, Jones, Francis & Selman, Inc., Waco, for appellee.
   ON MOTIONS FOR REHEARING

HALL, Justice.

In appellee’s motion for rehearing, our order abating this cause after remand has been treated as an order dealing with trial court jurisdiction or venue. It is neither. On the other hand, in his motion for dismissal on rehearing, appellant treats his plea in abatement on residency qualifications as a plea to the jurisdiction or plea in bar to the mere filing of the suit and states that the proper order is an order dismissing rather than an order abating. We disagree.

Family Code § 3.21 simply prohibits the petitioner in a divorce action from proceeding to trial in the county of suit unless he or the respondent was a good faith resident of the county for at least 90 days immediately preceding the filing of the petition upon which the suit is based. It does not deal with jurisdiction or venue or the right to bring a suit. It deals with the right to maintain a suit filed. In our case, if appellee had filed an amended petition after she had been a good faith resident of McLennan County for 90 days and the case had thereafter proceeded to trial, the court’s ruling on appellant’s plea in abatement would have been rendered harmless because the only relief he is entitled to receive by it, a stay of proceedings until appellee met the requirements of the statute, would have been satisfied. Shankles v. Shankles, 445 S.W.2d 803, (Tex.Civ.App.— Waco 1969, no writ hist.). Although the case now before us was tried after appellee had resided in McLennan County for 90 days, an amended petition was never filed (as we pointed up in our original opinion) and the rule in Shankles was not met. If this construction of Family Code § 3.21 can be said to be “technical,” it nevertheless serves the salutary purpose for which the statute was enacted by preventing forum shopping within the State by divorce litigants.

Our order abating does not prevent the filing of amended pleadings by appellee setting forth her residency requirements. Neither does it prevent a trial on the amended pleadings in McLennan County if the residency requirements are in fact met and if there are no other legal impediments to maintaining the suit in that county. The parties intimate another divorce action between them may now be pending in Falls County with attendant legal problems. This fact is not shown in the record before us and we make no ruling relating to it.

The appellee’s motion for rehearing is overruled. The appellant’s motion for an order of dismissal is overruled.


author: EVANS, Justice.

text:
    Mrs. Oline M. BUNTING et al., Appellants, v. Horace R. McCONNELL, Appellee.
    No. 16678.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 9, 1976.

      Denson & Swain, Marcus E. Faubion, Houston, for appellants.
    W. H. Betts, Hempstead, for appellee.
   EVANS, Justice.

Horace R. McConnell, appellee, brought this suit against his sister, Orline M. Bunting, and his three brothers, H. Alvis McConnell, J. D. McConnell and Vernon 0. McConnell, to establish a parol agreement for the partition of a 50 acre tract of land in Waller County which, along with other lands, had been devised to the parties by the terms of the will of their mother, Olga Frederick McConnell, deceased. The jury found that the five children had orally agreed that the 50 acre tract should be partitioned in such manner that the appellee, Horace R. McConnell, would receive a parcel of 33.252 acres out of such tract, representing his share of all the lands devised by his mother to her five children.

In their first three points of error appellants attack the legal and factual sufficiency of the evidence to support the jury’s finding of a parol agreement for partition.

It is settled in this state that persons who are common owners of land may effect a parol partition which segregates their possession and use. A partition of land does not confer or convey title, but merely dissolves the tenancy in common. Chace v. Gregg, 88 Tex. 552, 32 S.W. 520 (1895); Houston Oil Co. v. Kirkindall, 136 Tex. 103, 145 S.W.2d 1074 (1941); Lange, Texas Land Titles, Sec. 464, pp. 319-21. However, where several parcels are owned in common, the common owners may agree to partition their lands so that each owner receives a separate tract in severalty. Aycock v. Kimbrough, 71 Tex. 330, 12 S.W. 71 (1887); 23 Baylor Law Review 75, 83 (1971).

A number of meetings between the five children of Olga Frederick McConnell, deceased, were held over a two year period during which they discussed the division of the properties devised under their mother’s will. The appellee testified that on July 15, 1974, a final agreement was reached between them for the division of the commonly owned properties. According to appellee, he was to receive, as his share of the lands devised under his mother’s will, the back one-half of the 50 acre tract and a parcel equal to one-fourth of the front one-half, which had road frontage. Appellee testified that at this meeting his three brothers drew lots to determine which parcels they would take as their respective shares of the front one-half of the 50 acre tract. Appel-lee’s sister, Orline M. Bunting, was not to receive a share of the 50 acre tract and her share was to be set apart in other lands. The appellee also testified that after the lots had been drawn by his three brothers, his brother J. D. McConnell looked at him, smiled, and said, “Well, Horace, are you (still) going to let me have water?” To which he replied, “Sure I am, J. D.” After which they all got up and went home.

The appellants testified in effect that although a division of the property in the manner contended by appellee was proposed by appellee at the June 15 meeting such proposal was merely submitted for their consideration and was never accepted by them. Appellants contended that there were a number of contingencies which precluded any final agreement such as the surveyor’s final staking of the land to be partitioned and the location of a third party’s right of access across the parcel to be set apart to the appellee.

Following the July 15 meeting between the parties, appellant Orline M. Bunting employed a surveyor to divide the 50 acre tract and his plat dated August 19, 1974, was introduced in evidence. This surveyor testified that he had been employed by Mrs. Bunting to make a preliminary division of the 50 acre tract and that his plat represented that division. The plat indicates 49.-878 acres to be within the 50 acre tract and shows a tract of 33.252 acres in the name of appellee and three tracts of 5.542 acres each in the names of appellee’s three brothers.

The evidence is legally and factually sufficient to support the jury’s finding that the parties made a parol agreement at the July 15 meeting to partition and set apart to appellee the 33.252 acre parcel as his share of the lands devised under his mother’s will. The jury was entitled to accept appellee’s version of the matter and to reject the appellants’ contention that a final agreement had not yet been reached between them. The appellants’ first three points of error are overruled.

The appellants next contend in two points of error that the trial court erred in admitting in evidence, over their objection, a copy rather than the original of the surveyor’s plat and a recorded deed of which notice had not been given by a listing filed pursuant to the provisions of Article 3726, Tex.Rev.Civ.Stat.Ann. A photocopy of the surveyor’s plat was received in evidence over the appellants’ objection that the copy did not constitute the best evidence of the survey map. The surveyor testified that the copy represented a true and correct reproduction of his original survey map and upon such authentication the trial court correctly overruled appellants’ objection. The court was also correct in overruling the appellants’ objection to the reading of the recorded deed in evidence. At the beginning of the trial the parties stipulated that the 50 acre tract, along with other lands, had been devised in equal shares to the parties under their mother’s will and that such lands were referred to and identified in the plaintiff’s amended petition in the cause. That petition described the appellee’s claimed tract of 33.252 acres as being part of the 50 acre tract which had been set apart to the mother under a partition deed dated June 10, 1939, recorded in Volume 76, page 337 of thé Waller County Deed Records. Upon the pleadings and especially in view of the parties’ stipulation the trial court properly admitted the recorded deed in evidence. See McCraw v. City of Dallas, 420 S.W.2d 793, 797 (Tex.Civ.App. — Dallas 1967, writ ref. n. r. e.) The appellants’ points four and five are overruled.

In their next four points, the appellants contend the trial court erred in permitting Mrs. Bunting to be questioned on matters which, they assert, were protected by the attorney/client privilege; on matters pertaining to Mrs. Bunting’s failure to bring certain writings with her to the trial; and in permitting appellee to give repetitious testimony during the rebuttal stage of the proceedings. The appellants also contend, in their final point, that the cumulative effect of the trial court’s errors resulted in harm requiring reversal of the cause. These points are overruled.

The judgment of the trial court is affirmed.


author: BARROW, Chief Justice.

text:
    Gloria Joan REED, Relator, v. Hon. Eugene C. WILLIAMS et al., Respondents.
    No. 15782.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 10, 1976.
    Peter Torres, Jr., San Antonio, for relator.
    Marion T. Carson, James R. Adkins, San Antonio, for respondents.
   BARROW, Chief Justice.

This is an original proceeding wherein relator seeks a writ of mandamus to compel the Honorable Eugene C. Williams, acting Judge of the 81st Judicial District Court of Atascosa County, to enter a final judgment in a suit for divorce styled: In the Matter of the Marriage of Stetson G. Reed and Gloria Joan Reed, and being Cause No. 6767 in said court. The question presented is whether the trial court was authorized to sever the property division from the divorce action. We hold that the court was not so authorized and grant the relief prayed for by relator.

On April 11, 1975, Stetson G. Reed brought the action for divorce; a jury trial was had commencing on November 10, 1975; and an interlocutory decree of divorce was signed on April 5, 1976. This interlocutory decree granted the divorce, made provision for the parties’ two minor children, and then divided most, if not all, of the community estate. On January 20, 1976, Stetson G. Reed filed his petition in the United States District Court seeking voluntary bankruptcy and on March 15 he was adjudged a bankrupt. Relator was not a party to this proceeding. The divorce decree of April 1976 was made interlocutory pending final disposition of the bankruptcy proceeding. On October 15, 1976, the trial court signed what purports to be a final judgment. This judgment does not incorporate the April interlocutory decree insofar as the property division is concerned. Rather, the judgment provides that the property rights of the parties are severed and will be determined after final disposition of the bankruptcy proceedings.

Relator complained of this action and sought to have the trial court enter a final judgment which divided the community estate. The court refused to do so. The harm to relator is obvious. In the absence of a property division, the receiver in bankruptcy is disposing of all community property as assets of the bankrupt husband irrespective of any homestead or exemption rights the wife might have in the property. For example, the April interlocutory decree awarded the wife the family homestead as her separate property. This award was not incorporated in the October judgment and the receiver has advised relator that he intends to sell such property as a part of the bankrupt’s estate.

Sec. 3.63 of the Texas Family Code provides in part that in a decree of divorce, the court shall order a division of the estate of the parties. It is well settled that this statutory provision is mandatory and when the jurisdiction of the divorce court is invoked by the pleadings of either spouse, the court must decree a division of the property. Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (1960); Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306 (1939); Blancas v. Blancas, 495 S.W.2d 597 (Tex.Civ.App.— Texarkana 1973, no writ). It has been specifically held that this statutory provision prohibits the trial court from severing the property division from the divorce action. Angerstein v. Angerstein, 389 S.W.2d 519 (Tex.Civ.App. — Corpus Christi 1965, no writ); Pelham v. Sanders, 290 S.W.2d 684 (Tex.Civ.App. — Texarkana 1956, no writ).

The trial court erred in severing the property division from the divorce judgment and in refusing to divide the community estate. Accordingly, relator is entitled to the relief sought herein. We have jurisdiction under Art. 1824, Tex.Rev.Civ.Stat. Ann. (1964), to grant a writ of mandamus to compel the trial court to enter a judgment. Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959); Uvalde Rock Asphalt Co. v. Loughridge, 423 S.W.2d 602 (Tex.Civ. App. — San Antonio 1968, no writ).

We have no doubt that the trial court will promptly grant, this relief upon receipt of our judgment. We will therefore not issue a writ of mandamus at this time.


author: RAY, Justice.

text:
    Allen J. PITTS, Appellant, v. DALLAS NURSERIES GARDEN CENTER, INC., Appellee.
    No. 8383.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 14, 1976.

      Bettina S. Sehonfeld, Berman, Fichtner & Mitchell, Dallas, for appellant.
    John M. Gillis, Gillis, Rogers & Taylor, Dallas, for appellee.
   RAY, Justice.

This is a garnishment case. Dallas Nurseries Garden Center, Inc., appellee (plaintiff), filed a post-judgment garnishment proceeding against State Farm Insurance Companies (State Farm) as garnishees and holders of monies owed to Allen J. Pitts, appellant (intervenor). Pitts intervened in the garnishment proceeding and sought to quash the writ of garnishment. The motion to quash was denied and following trial to the court without a jury, judgment was entered for appellee in the sum of $862.69. Following the denial of the motions for new trial, the trial court filed findings of fact and conclusions of law. Appellant has perfected his appeal to this Court and submits four points of error for our consideration. State Farm has not appealed.

The main issues presented for review are whether the money owed to Pitts by State Farm was wages rather than commissions; whether Pitts was an employee of State Farm rather than an independent contractor; whether the judgment upon which the writ of garnishment was based was void; and, whether Tex.R.Civ.P. 657 and 679 and Tex.Rev.Civ.Stat.Ann. art. 4076 related to garnishment after judgment are unconstitutional.

The judgment of the trial court will be affirmed.

The evidence was sufficient to support the trial court’s finding that Appellant Pitts was an independent contractor and that the monies received by him from State Farm were commissions and not wages. State Farm and Pitts entered into a written agreement under which they operated at all relevant times. Pitts admitted that he was operating under the terms of the contract and that he understood the contract clearly. The contract provided that Pitts had chosen the independent contractor agreement in preference to one which would place him in an employee status and that he was an independent contractor for all purposes. It further provided that he had the right to exercise independent judgment as to the time, place and manner of soliciting insurance, servicing policyholders and otherwise carrying out the provisions of the agreement. We conclude that the funds garnished were commissions subject to garnishment and were not wages for personal services and that such commissions were not exempt from garnishment under the Texas Constitution, art. 16, sec. 28, and Tex.Rev. Civ.Stat.Ann. art. 4099. The evidence supports the fact findings made by the trial court as related to appellant’s first two points of error. Appellant’s own testimony makes it clear that he was an independent contractor. He testified that when he gets up in the mornings and goes to work, he may go to the office or may not go to the office; that he uses his own initiative to get his business going; that by using his head, he determines or locates an area where he thinks he could go and sell some policies; that when he sells a bunch of policies on his own initiative that makes him a better agent and gets more money in his pocket; that anticipation of being able to use his own initiative in trying to make more money than the fellow on a $200.00 a week salary had some bearing on his signing the agreement with State Farm; that he wanted to be free to work as the development of his skills would lead him to work; that he could work either twenty-four hours a day or one hour a day; that he employs and pays his part-time help; that he has the freedom to go and try to select what he considers to be a reputable place to set up his office; that the company does not tell him where to locate; that his 1973 tax return shows that he is self-employed and that his 1974 tax return would show the same; and, that the people working for him are his employees and not State Farm’s and that he does all the withholding on taxes and social security and files all the forms required. Points of error one and two are overruled. Standard Ins. Co. v. McKee, 146 Tex. 183, 205 S.W.2d 362 (1947); Anchor Casualty Company v. Hartsfield, 390 S.W.2d 469, 471 (Tex.1965); Pitchfork Land and Cattle Company v. King, 162 Tex. 331, 346 S.W.2d 598 (1961).

Appellant testified that the judgment upon which the writ of garnishment was based had not been paid and that the judgment was in the sum of $2,257.62, plus attorney’s fees, court costs and interest. The trial court in a garnishment proceeding may take judicial notice of the judgment in the original action. Kelly v. Gibbs, 84 Tex. 143, 19 S.W. 380, on rehearing, 84 Tex. 143, 19 S.W. 563 (1892). Appellant stipulated that if Grady Brown of Dallas Nurseries Garden Center, Inc. were called to testify, that he would state that Dallas Nurseries Garden Center, Inc. obtained a judgment against appellant for $2,257.62 with interest at the rate of ten percent from August 17, 1973, attorney’s fees of $500.00 and all costs of suit; that he would further testify that the judgment is final, valid, subsisting and remains unsatisfied. Appellant’s method of testing the validity of the original judgment was through his motion to quash.

Appellant’s third point of error is as follows:

“APPELLEE’S DEFAULT MONEY JUDGMENT OBTAINED AGAINST APPELLANT ON MARCH 18, 1974 IS VOID AND UNENFORCEABLE, BECAUSE IT IS TOO VAGUE AND INDEFINITE AND IS NOT A ‘FINAL JUDGMENT’ WHICH WILL SUPPORT A WRIT OF GARNISHMENT.”

In determining appellant’s point of error number three, it is the rule in this state that post-judgment garnishment is ancillary to the original proceedings and is the extension and enforcement of the trial court’s judgment. Thus, the trial court may look to the entire record and take judicial notice of the entire proceedings in determining whether the court has jurisdiction to enter its judgment in garnishment. Kelly v. Gibbs, supra. In the original proceedings the trial court stated,

“Let the record duly reflect that this cause being CC-74-5276-d in this Court styled Dallas Nurseries Garden Center, Inc. represented by John Gillis vs. Allen J. Pitts represented by Jay S. Fichtner was duly called after 9:00 a. m. this date, docket call being at 9:00 a. m. and at 9:20 a. m. no one had appeared for the Defendant and at that point testimony was heard from the Plaintiff.”

The record does not reveal that appellant appealed from the original judgment or that appellant has filed any proceedings to directly attack the judgment in the first instance. The trial court determined that the original judgment was final, valid and subsisting and unsatisfied.

The record and judgment clearly show that in the original proceedings the trial court had jurisdiction of the parties and the subject matter and appellant does not question that fact. Appellant’s questioning of the original judgment in the garnishment proceedings was a collateral attack upon the judgment and is not permitted. Olton State Bank v. Howell, 105 S.W.2d 287 (Tex.Civ.App. Amarillo 1937, no writ). The original judgment does not appear to be fatally defective upon its face. Any complaints by appellant as to irregularities in the judgment are barred since appellant did not timely appeal from such judgment. Olton State Bank v. Howell, supra. Appellant’s third point of error is overruled.

We find no merit in appellant’s fourth point of error. Post-judgment garnishment is a valid and constitutional method of enforcing a valid original judgment. After the rendition of a valid final judgment, the defendant must take notice of what will follow. Endicott-Johnson Corp. v. Encyclopedia Press, Inc., 266 U.S. 285, 45 S.Ct. 61, 69 L.Ed. 288 (1924); 25 Baylor L.Rev. 242. Appellant’s fourth point of error is overruled.

The judgment of the trial court is affirmed.


author: PHILLIPS, Chief Justice. SHANNON, Justice

text:
    Erick F. MEYER, Appellant, v. Arthur YOUNG, Jr., Appellee.
    No. 12479.
    Court of Civil Appeals of Texas, Austin.
    Dec. 15, 1976.

      Aubrey Davee, Gerald L. Johnson, Davee & Johnson, Brady, for appellant.
    Drew Darby, Marschall, Hall, McLaughlin & Lane, San Angelo, for appellee.
   PHILLIPS, Chief Justice.

This is an appeal from a dismissal in the county court of an appeal from the justice court in a forcible entry and detainer case.

We reverse the judgment and remand the cause to the county court for trial in accordance with this opinion.

The court’s dismissal for lack of jurisdiction was apparently based on two special exceptions raised by appellee; one, that no court cost deposit was made within five days of the granting of the judgment in the justice court; the other, that no notice of appeal was given in the justice court.

In our judgment, the county court was in error in granting these exceptions. With respect to the first ground, Rule 749, Texas Rules of Civil Procedure, states that appeal is perfected to the county court by filing a bond in the justice court within five days after rendition of judgment, such bond to be approved by the justice of the peace on condition that appellant will prosecute his appeal with effect or pay all costs and damages which may be adjudged against him. Here, judgment was rendered on January 20, 1976, and appellant’s appeal bond was approved on January 23, 1976, by the justice of the peace. This meets the requirement of Rule 749.

With respect to the question of notice of appeal, Rule 749 does not provide for a party to give notice of appeal in the justice court.

Appellee has a motion before us asking that we dismiss the appeal because of the provisions of Article 3992, Vernon’s Civil Statutes, which state: “The judgment of the county court finally disposing of the cause shall be conclusive of the litigation, and no further appeal shall be allowed, except where the judgment shall be for damages in an amount exceeding one hundred dollars.”

There were no damages sought in this case nor were any awarded; however, as the county court was in error in refusing to hear the case on the question of possession, we hold that it had jurisdiction to determine the merits of the controversy, and that we have jurisdiction to determine the points of error presented on this appeal. Jim Walter Corporation v. Bass, 356 S.W.2d 356 (Tex.Civ.App.1962, no writ), Estate of Zamaro v. Rodriguez, 517 S.W.2d 838 (Tex. Civ.App.1975, no writ).

We are aware that there are cases holding to the contrary however, the sense of Art. 3992 seems to contemplate a hearing on the merits in the county court with respect to possession before that court’s judgment becomes nonappealable. This is so in spite of the fact that a judgment of dismissal has been held to be a final judgment. Witty v. Rose, 148 S.W.2d 962 (Tex.Civ.App.1941, writ dism’d).

To hold to the contrary would deny the appellant his day in court where a jurisdictional error of the county court is apparent from the face of the record.

Appellee’s motion to dismiss is overruled, and the judgment is reversed and the cause is remanded to the county court.

SHANNON, Justice

(concurring).

I concur.

Arthur Young, Jr., filed a forcible detain-er suit in the justice court of Precinct Number One in McCulloch County. The defendant in that suit was Erick F. Meyer. The trial resulted in judgment for Young. Meyer appealed to the county court of McCul-loch County.

The judgment of the county court recited that the parties and their attorneys appeared, “. . . and announced ready upon Appellee’s Special Exceptions to the appeal of Appellant, and such appeal and exceptions thereto having been heard . it is the opinion of the Court that the law is with the Appellee.”

The judgment ordered . . such appeal be, and the same is hereby dismissed . ” The judgment did not award any damages.

The county court regarded, and necessarily treated, the special exceptions as pleas to its jurisdiction. Having determined those exceptions (pleas) adversely to Meyer, the court dismissed the appeal.

Texas Rev.Civ.Stat.Ann. Art. 3992 provides that no appeal lies to the Court of Civil Appeals from a judgment of the county court in a forcible detainer suit unless the judgment awards damage in excess of one hundred dollars. Pizanie v. Citizens Investment Company, 448 S.W.2d 803 (Tex. Civ.App.1969, writ ref’d).

Although Art. 3992 precludes appellate review on the merits in a forcible detainer suit, the statute does not prevent this Court from determining whether the county court had jurisdiction of the cause.

Every court of limited powers must determine its own jurisdiction in the first instance, and it does so when it assumes to hear and determine a case or when it refuses to hear and determine a cause. That does not preclude another court of general powers from making the same inquiry. If another court were precluded from determining the lower court’s jurisdiction, the judgment of every court, however special and limited its authority, would be conclusive in all cases, except where some other court was vested with appellate powers. Lindsey v. Luckett, 20 Tex. 516 (1857), see Leslie v. Griffin, 25 S.W.2d 820 (Tex.Com. App.1930, jdgmt. adopted); McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957). A similar rule obtains in the federal courts. Gully v. Interstate Natural Gas Co., 292 U.S. 16, 54 S.Ct. 565, 78 L.Ed. 1088 (1934), United States v. Corrick, 298 U.S. 435, 56 S.Ct. 829, 80 L.Ed. 1263 (1936).

      . An amendment to Rule 749 enacted in 1947 deleted the requirement that notice of appeal be given in the justice court.

      . New Friendship Baptist Church v. Collins, 453 S.W.2d 529 (Tex.Civ.App.1970, no writ), Kerlin v. Bassett, 152 S.W. 526 (Tex.Civ.App. 1912, no writ).


author: JAMES, Justice.

text:
    Shirley FORTENBERRY, Appellant, v. Durrell FORTENBERRY, Appellee.
    No. 5662.
    Court of Civil Appeals of Texas, Waco.
    Dec. 16, 1976.
    Rehearing Denied Jan. 6, 1977.
    Bob Huff & Associates, Lubbock, for appellant.
    Stovall & Stovall, Plainview, for appellee.
   OPINION

JAMES, Justice.

This case concerns the division of property in a divorce action. The wife appealed from the division of property made and from the refusal of the trial court to award attorney’s fees to her, asserting abuse of discretion. We overrule Appellant’s points of error and affirm the judgment of the trial court.

Findings of Fact and Conclusions of Law were filed by the trial court, none of which findings were challenged by the Appellant in her brief.

Durrell Fortenberry, the Appellee husband, and Shirley Fortenberry, the Appellant wife, were married September 29,1972, and separated May 15, 1975. They lived together, then, about two years and eight months. At the time the divorce suit was filed, he was forty years old and she was thirty-six years of age. No children were born to the marriage and none were expected at the time of the divorce judgment. At the time of the marriage, she was the mother of eight children, six of whom were under sixteen years of age. From the record it appears these children were fathered by four different men; however, the only child support she was receiving from any of them was $75.00 per month from the father of the youngest of her children. After the marriage, Appellant and her six youngest children moved in with Appellee, and the record shows that Appellee supported all of them until Appellant moved out and the parties thereby finally separated.

Appellee made his living as a tenant farmer, and also did some custom farm work. At the time of the marriage, Appel-lee owned some separate property, consisting principally of farm machinery, and a cow and calf, and was heavily in debt as compared to his assets. Appellant had knowledge of Appellee’s financial condition at the time of the marriage and at all pertinent times subsequent thereto. Prior to trial, Appellee filed a sworn inventory of the separate property he owned at the time of the marriage, same being all personalty. No values were shown on such inventory of the individual pieces of equipment or the total thereof. Likewise, prior to trial, Ap-pellee filed an itemized list of debts he owed at the time of the marriage, showing a total of $33,217.78.

During the times the parties lived together, Appellee traded items of farm machinery which he owned at the time of the marriage for other farm machinery and during this time various debts were paid and others created, all with Appellant’s knowledge. The parties bought household furniture during the marriage.

At the time they separated on or about May 15, 1975, she took with her the Ford station wagon worth at that time $1400.00, the greater part of the household furniture and furnishings, and groceries. Thereafter Appellee transferred the title of the station wagon to Appellant and gave her in all $970.00 in cash up to the time of trial.

Trial was had to the court without a jury. The court after granting the divorce, expressly found that “the debts are in excess of the value of the community property,” and awarded to Appellant Shirley Forten-berry the 1970 Ford station wagon, the household and kitchen furniture that was then in her possession, and “all cash which she has received since the separation”. The court then awarded “all of the rest, residue and remainder of the personal property” to Appellee Durrell Fortenberry, subject to the payment of the indebtedness, with Ap-pellee being “charged with the responsibility of paying all debts and obligations owed by the parties at the time of the separation.” The court taxed all court costs against Appellee, but denied Appellant the award of any attorney’s fees. From this judgment, Shirley Fortenberry appeals upon six points of error, asserting that the trial court abused its discretion in the division of the property and in denial of attorney’s fees to her. We overrule all of Appellant’s points of error and affirm the trial court’s judgment. We cannot say from this record that the trial court abused its discretion herein.

The total value of the items of property awarded to Appellant Shirley Fortenberry, free of any debt, amounted to $4870.00, according to Appellant’s own figures set out in her brief. It would serve no useful purpose to discuss in detail and itemize the various pieces of farm equipment and other personalty and the changes incident thereto from the time of the marriage to the time of trial. The property Appellee had when they married, coupled with trading, selling, purchasing and wearing out of items of personalty during the marriage, together with crops made, were all reviewed with thoroughness in the testimony. We believe a reasonably accurate perspective of the property status and the trial court’s division thereof may be seen from the following summary of total values prepared from the evidence, to wit:

(1) Total value of community property as of the time of trial $20,195.00
(2) Total value of Durrell Fortenberry's separate property at the time of trial$13,895,00
(3) Total value of the community property and his separate property $34,090.00
(4) Less the total indebtedness (plus estimated accrued interest on indebtedness)$29,993.01
(5) Net equity subject to be divided between the parties $ 4,096.99
(6) Value of Items of property awarded to the Appellant wife $ 4,870.00

The debts included secured notes to a Bank and the Farmers Home Administration, notes secured by certain equipment, and several unsecured debts.

With a net equity of $4,096.99 worth of property available for division between the parties, it is evident that the award of $4,870.00 worth of debt-free property to Appellant without any award for attorney’s fees could not in any way constitute an abuse of discretion on the part of the trial court.

Appellant contends that Appellee made and harvested a 300 acre wheat crop in the fall after the parties separated in May 1975, which crop “ought” to be worth $10,000.00 “under normal conditions,” and the trial court should have added this amount in as part of the community assets. The only testimony bearing on this crop matter was given by Appellee, who testified that he planted about 300 acres of dryland wheat in September 1975, that there had been no rain or moisture of any kind from time the wheat was planted up to the time of trial (in January 1976), that he might possibly be able to sell the wheat for what it had cost him to sow it. In other words, the wheat crop in question represented no value. Appellant offered no evidence to refute Appel-lee’s testimony in this regard. In our opinion, Appellant’s contention concerning this wheat crop is without merit.

Article 3.63 of the Family Code of Texas provides:

“In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”

It is well settled that the trial court has broad discretion in determining the disposition of property in divorce actions and this discretion will not be disturbed unless an abuse of discretion is shown. That is to say, the trial court’s action should be disturbed on appeal only where an abuse of discretion is shown in that the disposition made is manifestly unjust and unfair. Hedtke v. Hedtke (1923), 112 Tex. 404, 248 S.W. 21; Carle v. Carle (1950), 149 Tex. 469, 234 S.W.2d 1002; Bell v. Bell (Tex.1974), 513 S.W.2d 20; McKnight v. McKnight (Tex.1976), 543 S.W.2d 863, opinion pronounced November 24, 1976, 20 Tex.Sup.Ct.J. 64.

With reference to the refusal of the trial court to award attorney’s fees to Appellant, this likewise is a matter within the sound discretion of the trial court, and is “but a factor to be considered by the court in making an equitable division of the estate, considering the conditions and needs of the parties and all the surrounding circumstances.” Carle v. Carle (1950), 149 Tex. 469, 234 S.W.2d 1002, 1005; Williams v. Williams (Tyler CA 1976), 537 S.W.2d 107, 111, no writ.

In the case at bar, we cannot say from this record that the trial court abused its discretion in either the division of property or in its refusal to award any attorney’s fees to Appellant.

This case was heard on January 13, 1976, by Hon. L. D. Ratliff, District Judge of the 110th Judicial District of Texas. Thereafter, Judge Ratliff wrote the lawyers on both sides a letter bearing date of January 23, 1976, wherein he set forth in detail the manner in which he had decided to divide the property, and giving his reasoning in connection therewith. On January 24,1976, Judge Ratliff died. After Judge Ratliff’s death, to wit, on January 28, 1976, Hon. John T. Boyd, a District Judge sitting on assignment as District Judge of Floyd County, Texas, signed and entered the trial court’s judgment, the provisions of such judgment being in harmony with Judge Ratliff’s proposed decision as expressed in his letter of January 23,1976. Subsequently, Hon. George Miller was appointed as District Judge of the 110th Judicial District to fill the vacancy caused by Judge Ratliff’s death. Judge .MiHer signed and filed the Findings of Fact and Conclusions of Law, and heard and overruled Appellant’s Motion for New Trial.

As we understand Appellant’s contentions, she asserts the case should be reversed “in the interests of justice” because of the foregoing facts hereinabove stated wherein one District Judge tried and decided the case, another entered judgment, and a third Judge filed Findings of Fact and Conclusions of Law. We overrule these contentions, because none of these actions on the part of the three judges present any error at all, let alone reversible error. See Rule 18, Texas Rules of Civil Procedure; Art. 2248, Vernon’s Texas Civil Statutes; Horizon Properties Corp. v. Martinez (El Paso CA 1974), 513 S.W.2d 264, NRE; Rule 434,-. Texas Rules of Civil Procedure; 4 Tex. Jur.2d, Part 2, “Appeal and Error-Civil Cases,” par. 842, p. 361.

All of Appellant’s points and contentions are overruled. Judgment of the trial court is affirmed.

AFFIRMED.


text:
    Norma Jean POTTER, Appellant, v. Virginia B. POTTER, Appellee.
    No. 16790.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 16, 1976.
    Rehearing Denied Jan. 13, 1977.

      Jerry K. Atkins, Houston, for appellant.
    Schleider & Ewing, Ben H. Schleider, Jr., Houston, for appellee.
   PEDEN, Justice.

Norma Jean Potter appeals from an order of the Probate Court dismissing for want of jurisdiction her suit asserting a community interest in certain shares of stock in the estate of Thomas Potter, deceased. She had been divorced from him. His widow, Virginia Beth Potter, administratrix of the estate of Thomas Potter, listed the shares in the inventory of his estate as his separate property. The basic issue is whether the determination of ownership of personal property incident to an estate has been brought within the jurisdiction of the Probate Court pursuant to the 1973 and 1975 amendments of Section 5 of the Probate Code. We hold that it has, and we reverse and remand this cause.

Plaintiff’s petition alleges that the plaintiff and decedent each owned an undivided one-half interest in the stock, that the stock was not disposed of or partitioned in the divorce, and that it was owned by the decedent prior to his marriage to Virginia Potter. The answer of the defendant-appellee alleges that the interest in the stock formerly owned by the plaintiff was received by the decedent in the property settlement agreement.

The appellant’s points of error are that the trial court erred in rendering an unreasonable interpretation of Section 5 of the Probate Code, Vernon’s Texas Civil Statutes, and in dismissing appellant’s suit for want of jurisdiction. The pertinent parts of Section 5 of the Texas Probate Code, as amended in 1973 and 1975, now read:

“(c) In those counties where there is a statutory probate court, . . .all applications, petitions and motions regarding . . . administrations . shall be filed and heard in such courts rather than in the district courts, unless otherwise provided by the legislature .
“(d) All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate, including but not limited to, all claims by or against an estate, all actions for trial of title to land incident to an estate and for the enforcement of liens thereon incident to an estate, all actions for trial of the right of property incident to an estate, and actions to construe wills.”

The effectiveness of the 1973 amendment to the Probate Code depended upon adoption of a proposed amendment to Section 8 of Article V of the Constitution. That amendment was adopted and gave the Legislature power, “Section 16 of Article V of this Constitution notwithstanding, to increase, diminish or eliminate the jurisdiction of either the district court or the county court in probate matters . . .’’By opinion No. H-434, Hon. John Hill, Attorney General of Texas, has stated that the 1973 amendment to the Texas Probate Code is constitutional and that all courts exercising probate jurisdiction may now hear all matters incident to an estate.

The amendments adding paragraphs (c) and (d) to Section 5 of the Probate Code were intended to confer upon probate courts jurisdiction over matters which have in the past been within the exclusive jurisdiction of the district courts. 17 Texas Practice Series, Woodward and Smith, Probate and Decedents’ Estates (1975 pocket part) § 9.

The amendments are remedial and should be liberally construed. In our case there was no showing of any reason why the probate court should not accept the plaintiff’s claim, such as inconvenience to the parties or conflict with the application of the venue statute or some other statute or rule. See Woodward and Smith, supra.

The appellee cites Anderson v. Anderson, 535 S.W.2d 943 (Tex.Civ.App.1976, no writ) in support of her position, but we do not consider it controlling. In that opinion the court pointed out that it has been held since early times that the probate court has no jurisdiction to determine title to real or personal property. The opinion did not mention the amendments to Section 5 of the Probate Code, and the case was decided on other grounds.

We reverse the order of dismissal and remand the plaintiff’s claim to the trial court.


author: RAY, Justice.,

text:
    Donald E. ARMSTRONG, Appellant, v. Dr. Melvin D. MORGAN, Appellee.
    No. 8406.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 21, 1976.
    Rehearing Denied Jan. 11, 1977.

      Stanley M. Kaufman, Oster & Kaufman, Dallas, for appellant.
    David S. Kidder, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
   RAY, Justice.,

This is a summary judgment case. Donald E. Armstrong, appellant (plaintiff), filed suit against appellee (defendant), Dr. Melvin D. Morgan, seeking money damages alleged to have resulted from an incorrect diagnosis of appellant’s physical condition. Appellee’s motion for summary judgment was granted and the trial court entered a take-nothing judgment against appellant. Two points of error have been submitted for our consideration.

Appellant contends that genuine issues of material fact exist and that appellant’s cause of action is not barred by limitations.

Appellant Armstrong was employed by Zale Corporation and upon his being promoted to the position of Vice President of Credit he was requested to have a physical examination. He was examined by Dr. Morgan who was employed by Zale to make the examination and report to it the results of the examination. The report indicated that appellant was in very bad physical condition. The statements contained in Dr. Morgan’s letter resulted in appellant’s losing his job and his position as Vice President of Credit of Zale Corporation, plus the benefits which he had by virtue of his position with the company. Appellant contends that the letter contained false and inaccurate statements and conclusions regarding his health and physical condition and that appellee was negligent in his diagnosis because he did not exercise reasonable attention, observation and skill in conducting the physical examination. Further, appellant contends that the inaccurate and improper diagnosis resulted in damages to him because he lost his job when the report was received by Zale Corporation.

Appellee contends that the holding in Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705 (Tex.Civ.App.Dallas 1968, writ ref’d n. r. e.), controls the disposition to be made in the present case. There the court held that the company doctor owed no duty to the employee to discover that she had tuberculosis when he examined her prior to being employed by the company. Since there was no duty on the company physician or the employer to discover the presence of disease, there could be no actionable negligence in their failure to do so. In Childs v. Weis, 440 S.W.2d 104 (Tex.Civ. App.Dallas 1969, no writ), the court decided that the physician-patient relationship is dependent upon contract and in the absence of such contract, the physician owes no duty to treat a person in need of medical assistance. It is undisputed that no contract existed between appellant and Appellee Morgan. However, the court pointed out in Childs v. Weis, supra, that it had occasion to discuss the contractual relationship of physician and patient in Lotspeich v. Chance Vought Aircraft, supra, and that it had decided in Lotspeich “there was no duty on the doctor to do anything except to perform efficiently the work the company had employed him to do.” In Lotspeich the same court said that the job applicant had no legal right to demand that the doctor exercise any care whatever in conducting the examination, except to avoid injuring her.

This Court had occasion to examine a similar question in Childs v. Greenville Hospital Authority, 479 S.W.2d 399 (Tex.Civ.App.Texarkana 1972, writ ref’d n. r. e.), which grew out of the same transaction involved in Childs v. Weis, supra. There we quoted the following from Prosser:

“The problem of duty is as broad as the whole law of negligence, and . no universal test for it has ever been formulated . . .. It is imbedded far too firmly in our law to be discarded, and no satisfactory substitute for it, by which the defendant’s responsibility may be limited, has been devised. But it should be recognized that duty ... is not sacrosanct in itself but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. ... No better general statement can be made, than that the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.” William L. Prosser, Law of Torts, Sec. 53, 3rd Ed. 1964.

We held that the nurse on duty in the emergency room had a duty to correctly relay the message she received from the doctor by telephone to the woman seeking admission to the hospital. We said,

“Reasonable men would recognize and agree, so it seems to this court, that Mrs. Beckham’s (the nurse) relation to Mrs. Childs was attendant with responsibility, and that a person in the position of Mrs. Beckham had a duty, when all the circumstances are considered, of accurately reporting to Mrs. Childs the message the doctor told her to deliver in connection with the denial of the application for admission. Whether she reported accurately or inaccurately, and whether failure to accurately report constitutes negligence are questions of fact for the jury.”

In the instant case, Dr. Morgan owed Appellant Armstrong a duty not to injure him physically or otherwise. If Dr. Morgan negligently performed the examination and as a result gave an inaccurate report of the state of appellant’s health, and appellant was injured as a proximate result thereof, actionable negligence would be shown. See Annot., 10 A.L.R.3d 1071, 1074. Those questions are fact issues. Since there are genuine issues of material fact to be determined by the trier of facts, we sustain appellant’s point of error number one and order the case remanded for trial on its merits.

We further conclude that appellant’s tort action is not barred by limitations since it was timely filed within the two-year period of time prescribed by Tex.Rev.Civ.Stat. art. 5526.

Alternatively, appellant sought damages for libelous statements alleged to have been contained in appellee’s letter to Zale Corporation. Appellee contended in the trial court that the one-year statute of limitations, Tex.Rev.Civ.Stat. art. 5524, governed and that more than one year had transpired between the date of the doctor’s letter on July 27, 1973, and the bringing of the suit on January 13,1975. Appellant did not see or receive a copy of the letter until April 20, 1974. We hold that the statute of limitations in a cause of action for libel begins to run from the date that the injured party learns of, or in the exercise of reasonable diligence should have learned of the injury or wrong giving rise to the cause of action. Kelley v. Rinkle, 532 S.W.2d 947 (Tex.1976). The circumstances of this case make it more reasonable to apply the “discovery” rule rather than the “publication” rule.

Since the summary judgment proof does not show as a matter of law that appellant knew or should have known of the existence of the medical report more than one year before appellant’s suit was filed, the trial court’s summary judgment for appellee was improper.

Appellant’s second point of error is sustained. The judgment of the trial court is reversed and the case remanded for trial upon its merits.


author: COULSON, Justice.

text:
    COMMISSIONERS COURT OF HARRIS COUNTY, Texas, et al., Appellants, v. PEOPLES NATIONAL UTILITY COMPANY, Appellee.
    No. 1508.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Dec. 22, 1976.

      Joe Resweber, County Atty., Michael R. Davis, Asst. County Atty., Houston, David F. Bragg, Asst. Atty. Gen., State of Texas, Houston, for appellants.
    William S. Olson, Sr., B. Jeff Bratton, Houston, for appellee.
   COULSON, Justice.

This is an appeal by the Commissioners Court of Harris County, Texas, et al., from an order denying a temporary injunction against Peoples National Utility Company. Another facet of this case was previously before this court. The Harris County Commissioners Court, et al., sought a temporary injunction restraining Peoples National Utility Company from discontinuing water service to any of its customers in the Greenwood Village Subdivision of Harris County, Texas, an unincorporated area, who had tendered payment to the Utility Company according to rates established by the Commissioners Court in Orders issued June 10 and June 24, 1976. The Orders were issued under authority of Tex.Rev.Civ.Stat. Ann. art. 2372q-l (Supp. 1976-1977). Article 2372q-l confers on the commissioners court of any county of this State having a population of more than 1,500,000 according to the preceding federal census, the authority to regulate the rates and charges of private water companies furnishing services to the public.

Section 17(e) of the Public Utility Regulatory Act, Tex.Rev.Civ.Stat.Ann. art. 1446c (Supp. 1976-1977), confers on the Texas Public Utility Commission exclusive original jurisdiction over electric, water, and sewer utility rates, operations, and services not within the incorporated limits of a municipality. Section 90 of the Act repeals all laws and parts of laws in conflict with such Act effective. September 1, 1976. The Act does not contain a savings clause.

Article 2372q-l was repealed on September 1, 1976, as it is in conflict with article 1446c. Exclusive original jurisdiction over utility rates has thus been removed from the county commissioners courts and vested in the Public Utility Commission of Texas by article 1446c, and article 2372q-l is considered as though it never existed. National Garloading, Corp. v. Phoenix-El Paso Express, 142 Tex. 141, 176 S.W.2d 564, 570 (1943), cert. denied, 322 U.S. 747, 64 S.Ct. 1156, 88 L.Ed. 1578 (1944). The repeal of 2372q-l deprives the district court and this court of jurisdiction of the subject matter of this controversy. National Carloading, supra, at 568. Our construction of article 1446c is consistent with the recent decision in Southwestern Bell Tel. Co. v. City of Kountze, 543 S.W.2d 871 (Tex.Civ.App. — Beaumont 1976, no writ).

“When a cause becomes moot on appeal, all previous orders and judgments should be set aside and the cause, not merely the appeal, dismissed.” Freeman v. Burrows, 141 Tex. 318, 171 S.W.2d 863 (1943). Since the cause is now moot, all orders of the trial court are set aside and the cause dismissed. Costs are assessed one-half against Harris County and one-half against Peoples National Utility Company.

Cause dismissed.

      . An order granting a temporary injunction in favor of the Utility Company was reversed and remanded. Commissioners Court of Harris County, Texas v. Peoples National Utility Company, 538 S.W.2d 228 (Tex.Civ.App. — Houston [14th Dist.] 1976, writ ref’d n. r. e.).


author: CIRE, Justice.

text:
    AMERICAN EXPRESS COMPANY, Appellant, v. MONFORT FOOD DISTRIBUTING COMPANY, Appellee.
    No. 1512.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Dec. 22, 1976.

      Michael Paul Graham, Thomas R. Phillips, Baker & Botts, Houston, for appellant.
    S. Mitchell Glassman, Elene B. Glassman, Brown, Teed, Sims, Ayre & Glassman, Joe Resweber, County Atty., Billy E. Lee, Asst. County Atty., Houston, for appellee.
   CIRE, Justice.

This appeal is from a summary judgment denying relief upon a bill of review to set aside a default judgment taken in a writ of garnishment action.

Appellee Monfort Food Distributing Co., Inc. (Monfort) obtained a judgment against Ichiban of Houston, Inc., d/b/a Ichiban Steak House of Houston (Ichiban). It then sought a writ of garnishment upon appellant American Express Co., Inc. After service of citation, the legal department of American Express, located in New York City, forwarded the writ of garnishment to Dale B. Shepp, supervisor of its Sales Service Division, located in Phoenix, Arizona. Mr. Shepp mailed an answer to Ray Hardy, district clerk of Harris County on October 22, 1975. This answer, in the form of a letter addressed to Mr. Hardy, contained the style and cause number of the garnishment action and read in part “[p]lease be advised that as of this date no funds are due and owing said defendant.” It also contained an affidavit by Mr. Shepp swearing to the truth of the answer. No copy was sent to Monfort or its counsel, though counsel’s name and address appeared on the writ.

The original of the answer was returned to Mr. Shepp bearing the district clerk’s file mark, dated October 28, 1975. No copy of the answer was made by the district clerk’s office and no record of the answer was kept. Judgment by default was entered on November 21, 1975. Notice of default was mailed to American Express in care of its registered agent, but for some unexplained reason was returned “not deliverable as addressed.” American Express had no knowledge of the default judgment until March 23, 1976. On that date, a deputy sheriff of Harris County sought to execute the writ of garnishment at the offices of American Express in Houston; this was prevented by its payment of a cashier’s check to the sheriff of Harris County in the amount of judgment plus costs. American Express then obtained a temporary injunction against the sheriff to prevent him from paying the money to Monfort and filed a bill of review in the court below to set aside the default judgment. The sheriff deposited the proceeds of the cashier’s check into the registry of the trial court and both parties moved for summary judgment. After a hearing, Monfort’s motion was granted. The judgment recited:

and the Court, having heard the arguments of counsel, being of the opinion that no genuine issue as to any material fact exists in this cause, and being further of the opinion that, as a matter of law, the failure of the Plaintiff, American Express Company, to file an answer to a Writ of Garnishment duly served upon it in Cause No. 1,023,779-A, styled Monfort Food Distributing Company vs. Greenway Bank & Trust of Houston, and American Express Company, Garnishee, in the 55th Judicial District Court of Harris County, Texas, was mixed with the fault or negligence of the said Plaintiff, American Express Company, and that, therefore, as a matter of law, the said Plaintiff, American Express Company, is not entitled to a Bill of Review in this cause .

American Express appeals on two points of error, contending: (1) it was error to grant Monfort’s motion for summary judgment and (2) it was error not to grant American Express’s motion for summary judgment because it established as a matter of law all the necessary elements for relief under a bill of review.

Where the defendant seeks summary judgment, he must establish that there is no genuine issue of fact as to at least’ one essential element of plaintiff’s cause of action, and that he is entitled to judgment as a matter of law. “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936 (Tex.Sup.1972); Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex.Sup.1970). In its bill of review, American Express had to allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which it was prevented from making by the fraud, accident, or wrongful act of the opposite party, (3) unmixed with any negligence of its own. The second requirement is satisfied where the excuse is based on an error made by an officer of the court acting in his official capacity in discharge of a duty imposed by law. Petro-Chemical Transp., Inc. v. Carroll, 514 S.W.2d 240, 245 (Tex.Sup. 1974); Hanks v. Rosser, 378 S.W.2d 31, 35 (Tex.Sup.1964).

For its meritorious defense to the writ of garnishment, American Express asserted that it was not indebted to Ichiban. Mon-fort has not controverted this assertion.

American Express’s bill of review alleged it was prevented from making its defense through an error made by an officer of the court acting in his official capacity in discharge of a duty imposed by law because the district clerk’s office erroneously returned its answer. The answer, bearing the district clerk’s file mark, and the envelope in which the answer was returned to American Express’s Phoenix offices were entered into evidence before the trial court. Pleadings are properly filed with the clerk of the court. Tex.R.Civ.P. 74. Where a paper is deposited with the clerk for the purpose of making it a part of the record of the case, it is filed. Hanover Fire Ins. Co. v. Shrader, 89 Tex. 85, 33 S.W. 112, 113 (1895); Civil Serv. Comm’n v. Crager, 384 S.W .2d 381, 383 (Tex.Civ.App.-Beaumont 1964, writ ref’d n. r. e.). American Express thus presented some evidence that it properly filed an answer, and that the error of the district clerk in not placing the answer with the other papers in the court’s file caused the default judgment to be entered. Monfort did not controvert this evidence.

Finally, American Express contends that the mistaken handling of the answer leading to the default judgment was unmixed with any negligence of its own. Monfort asserts it was negligence as a matter of law to allow a corporation’s legal business to be handled by someone not an attorney, and that the answer was a nullity and thus could not prevent a default judgment.

In support of its contention that the answer of American Express was a nullity, appellee cites the general rule that corporations may appear in court only by an attorney. Annot., 19 A.L.R.3d 1073 (1968); 9 Fletcher Cyclopedia of Corporations § 4463 (perm. ed. rev. vol. 1976). One Texas court has adopted this rule. Globe Leasing, Inc. v. Engine Supply & Mach. Serv., 437 S.W.2d 43, 45 (Tex.Civ.App.-Houston [1st Dist.] 1969, no writ). The purpose of the rule requiring legal matters to be handled by persons trained in the law and familiar with court procedure is to further the efficient administration of justice.

It could be argued that garnishment suits are inquisitorial in nature and akin to bills of discovery and, therefore, the general rule does not apply. In the case of Gerhard Hardware Co. v. Texas Cotton-Press Co., 26 S.W. 168 (Tex.Civ.App.1894, no writ), which was a garnishment suit, the court held that a vice-president of a corporation had authority to answer for the corporation. But it is unnecessary for us to decide that question. Even if a corporation can answer through one of its officers, it does so at its own risk, and in this case it was negligence as a matter of law for the legal staff of this large, nationwide corporation to completely entrust the answering of the writ of garnishment to a layman in Arizona. An attorney would have recognized the clerk’s mistake in returning the answer, and an attorney would not have filed an answer in the form of a letter which, without a doubt, contributed to the clerk’s failure to place the answer with the other papers in the suit.

Further, even if we ignored the “negligence” test as set out in Texas Mach. & Equip. Co., Inc. v. Gordon Knox Oil & Exp. Co., 442 S.W.2d 315, 318 (Tex.Sup. 1969), and applied the “intentional failure or conscious indifference” test as earlier expressed in Hanks v. Rosser, supra, 378 S.W.2d at 34, it would not affect our ultimate holding in this case. Even if the answer had been before the trial court at the time the default judgment was entered, we would be required to affirm the judgment. Appellant’s answer was insufficient in that it failed to: (1) state what effects, if any, of Ichiban American Express had in its possession and (2) state what persons, if any, within its knowledge were indebted to Ichiban or had in their possession effects belonging to Ichiban. These questions are material, and the Rules of Civil Procedure require them to be propounded in the writ and to be answered by the garnishee as a prerequisite to discharge. Tex.R.Civ.P. 659, 666. Where the garnishee’s answer fails to-respond to these questions, it may be regarded as no answer at all, and judgment by default may be entered against the garnishee. This is a harsh but well-settled rule. In Gray v. Armour & Co., 129 Tex. 512, 104 S.W.2d 486, 487 (1937) the court in construing article 4086 of the. Revised Stat-. utes, the predecessor of our present rule 666, stated:

Prior decisions, however, must be construed as clearly establishing the rule that if the answer filed does not contain responses to all inquiries required to be answered in order to furnish the basis for discharge, as provided by article 4086, then the answer may be regarded as insufficient, even in absence of exceptions or a controverting affidavit, and judgment by default may be entered against the garnishee.

We are aware that at the time the Gray opinion was handed down, article 4087 of the Revised Statutes governed default judgments in garnishment cases. That statute read:

The garnishee shall in all cases after lawful service file an answer to the writ of garnishment on or before appearance day of the term of the court to which such writ is returnable, and should the garnishee fail to file such answer to said writ as herein required, it shall be lawful for the court ... to render judgment by default .

Article 4087 was repealed by our present rule 667 which reads:

If the garnishee fails to file an answer to the writ of garnishment at or before the time directed in the writ, it shall be lawful for the court ... to render judgment by default .

The deletion of the phrase “as herein required” from rule 667 does create some doubt in our minds as to whether the rule as stated in Gray is still in effect, but Gray has been cited several times by other courts of civil appeals since the effective date of rules 666 and 667. J. C. Hadsell & Co., Inc. v. Allstate Ins. Co., 516 S.W.2d 211 (Tex. Civ.App.-Texarkana 1974, writ dism’d); Investors Diversified Serv., Inc. v. Bruner, 366 S.W.2d 810 (Tex.Civ.App.-Houston [1st Dist.] 1963, writ ref’d n.r.e.); First Nat’l Bank v. Banco Longoria, S.A., 356 S.W.2d 192 (Tex.Civ.App.-San Antonio 1962, writ ref’d n.r.e.); Snyder Nat’l Bank v. Pinkston, 219 S.W.2d 606 (Tex.Civ.App.-Dallas 1949, no writ); Vick v. Merchants’ Fast Motor Lines, Inc., 151 S.W.2d 293 (Tex.Civ.App.-Eastland 1941, no writ); Texlite, Inc. v. Liberty State Bank, 150 S.W.2d 822 (Tex. Civ.App.-Waco 1941, no writ). Until our supreme court holds otherwise, we must regard it as merely a minor textual revision rather than a substantive change. In our opinion the rule has been with us too long to be overturned in such a casual manner. In the case of Kentucky Oil Corp. v. David, 285 S.W. 290 (Tex.Com.App.1926, jdgmt. adopted), the court, in reviewing the history of the rule, said at page 292:

It is well settled by a long line of decisions beginning at a very early day that a failure, without good excuse timely interposed, by the garnishee to file an answer to each of the statutory inquiries contained in the writ served upon him will authorize the rendition of a default judgment against him. (citing cases)

Appellant’s points are overruled and the judgment of the trial court is affirmed.


author: PHILLIPS, Chief Justice.

text:
    Timothy John VRABEL et ux., Appellants, v. DONAHOE CREEK WATERSHED AUTHORITY et al., Appellees.
    No. 12485.
    Court of Civil Appeals of Texas, Austin.
    Dec. 22, 1976.
    Rehearing Denied Jan. 12, 1977.

      James L. Cutcher, Barkley & Cutcher, Taylor, for appellants.
    Richard L. Mewhinney, Prescott, Greenfield, Mewhinney & Wilson, Temple, for appellees.
   PHILLIPS, Chief Justice.

Appellants brought this action to determine the validity of a purported easement asserted by appellees on a tract of land owned by appellants. Appellants’ main point, which we sustain, is that the easement is void because of a lack of adequate description.

The purported easement which was granted to appellees by appellants’ predecessor in title is described as follows:

“BEING 111.0 acres, more or less, out of a 250.5 acre tract of land in the Basil Durbin Survey, as more fully described in a Warranty Deed dated January 1, 1953, from Erwin Mankins and wife, Mayna Aliene Mankins, to Leslie E. Moore and wife, Lela Mae Moore as recorded in Volume 385, Page 599, of the Deed Records of Williamson County, Texas, to which reference is made for all purposes.”

Appellants moved for summary judgment. Appellees responded by filing their motion for summary judgment contending that the easement was valid. The trial court granted partial summary judgment for appellees holding the easement valid, that it had not expired, and that the exact location of the 111 acres of land burdened by the easement created an ambiguity in the instrument which would have to be proved by extrinsic evidence. Trial was held, and the court fixed the location of the easement, and appellants then perfected their appeal to this Court.

We reverse the judgment of the trial court and render judgment for appellants on their motion for summary judgment.

In Matney v. Odom, 147 Tex. 26, 210 S.W.2d 980 (1948), the Supreme Court stated the well established rule that for a contract to convey land to be sufficient, the description must be so definite and certain upon the face of the instrument itself, or, in some writing referred to, that the land can be identified with reasonable certainty. Williams v. Ellison, 493 S.W.2d 734 (Tex.1973); Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972); Republic National Bank of Dallas v. Stetson, 390 S.W.2d 257 (Tex.1965).

The rule relating to the sufficiency of descriptions of easements is the same as that required in conveyances of land. West v. Giesen, 242 S.W. 312 (Tex.Civ.App.1922, writ ref.); Bear v. Houston & T. C. Ry. Co., 265 S.W. 246, 249 (Tex.Civ.App.1924, no writ), and authorities there cited. The description requires a certainty such that a surveyor can go upon the land and locate the easement from such description. The description herein wholly fails in this respect. Compton v. Texas Southeastern Gas Company, 315 S.W.2d 345 (Tex.Civ.App. 1958, writ ref. n. r. e.).

Inasmuch as the easement before us does not furnish within itself a description to its location, nor is there any reference to outside aids to help in determining its location, the easement must fail for lack of an adequate description. Lewis v. Midgett, 448 S.W .2d 548 (Tex.Civ.App.1969, no writ); City of Port Arthur v. Badeaux, 425 S.W.2d 658 (Tex.Civ.App.1968, writ ref. n. r. e.).

Judgment of the trial court is reversed, and judgment is here rendered for appellants declaring the easement void.

Reversed and Rendered.


text:
    Roy LYNCH, Appellant, v. EXXON PIPELINE COMPANY, Appellee.
    No. 5613.
    Court of Civil Appeals of Texas, Waco.
    Dec. 23, 1976.
    Frank M. Fitzpatrick, Moody & Crow, Waco, for appellant.
    Kenneth P. Fountain, Houston, for appel-lee.
   HALL, Justice.

John Pearson and the appellant, Roy Lynch, instituted separate suits against ap-pellee, Exxon Pipeline Company, for damages resulting from a break in Exxon’s underground 12-inch oil pipe line on land owned by Pearson and leased to appellant. Exxon answered with general denials, but in response to requests for admissions it conceded that both Pearson and appellant were damaged by the oil spill. The cases were tried together by the court without a jury. Judgment was rendered in favor of Pearson in the sum of $7,383.90, and in favor of appellant in the sum of $3,313.00. Pearson did not appeal. Appellant predicates his appeal on two points of error, asserting (1) the court erred in failing to comply with his demand for findings of fact and conclusions of law, and (2) the evidence conclusively shows that he suffered certain amounts of damages, and he should have therefore recovered judgment for those amounts. We overrule these contentions and affirm the judgment.

Appellant made a timely demand for the court to file written findings of fact and conclusions of law. The request was not met, but this failure was never called to the judge’s attention.

Rule 297, Vernon’s Tex.Rules Civ.Proc., provides as follows: “When demand is made therefor, the judge of a district or county court thirty days before the time for filing transcript in the cause shall prepare his findings of fact and conclusions of law in any case tried before the court. If he shall fail so to prepare them, the party so demanding, in order to complain of the failure, shall, in writing, within five days after such period, call the omission to the attention of the judge, whereupon the period for due preparation and filing shall be automatically extended for five days after such notification.”

Under the provisions of Rule 297, appellant may not now complain of the judge’s failure to file findings and conclusions, because he did not notify the judge of the omission within the prescribed time. Polk v. Grogan’s Wholesale and Retail Lumber, 325 S.W.2d 201, 208 (Tex.Civ.App. — Waco 1959, writ ref’d n. r. e.).

Appellant’s second point is based upon the contention that the proof shows without contradiction he suffered the following damages as a result of oil leakage from the broken pipe line:

1. $633.33 for loss of use of 110 acres for cattle grazing for 100 days.
2. $1,600.00 for feed he was required to purchase to feed his cattle as a result of the loss of use of 110 acres for 100 days for grazing.
3. $2,425.00 for extra travel expenses to and from Marlin and Waco in connection with caring for his cattle during the oil spill.
4. $770.00 for analysis of the water in a polluted tank for which Exxon agreed to pay.
5. $700.00 for a new fence necessary to keep cattle off grass contaminated by the spill.

We disagree. Most of the proof of these elements of damage rests solely upon appellant’s testimony. Much of it is uncorroborated. Material questions are raised in the proof relating to extra time and travel appellant was required to devote to his ranching operation on the leased premises as a result of the oil spill, and their value and cost; to the amount of acreage he lost for grazing purposes and the term of the loss; to the amount of extra feed he was required to use and its value; to the actual cost of the new fence he personally constructed; and to whether Exxon agreed to pay for the water analysis in question.

Appellant’s testimony was that of an interested witness. In several parts, such as extra time, travel, and feed, and their values, it could not be readily contradicted if untrue. Testimony of this nature raises only questions of fact. Gevinson v. Manhattan Construction Co. of Oklahoma, 449 S.W.2d 458, 467 (Tex.Sup.1969). As trier of the facts, it was the trial judge’s prerogative and duty to weigh all of the evidence, ferret out what he believed to be its most credible parts, and award damages accordingly.

The evidence does not conclusively establish the amounts of damages sought by appellant. On the other hand, the court’s award is well within the proof.

Appellant’s points and contentions are overruled. The judgment is affirmed.


text:
    Earl J. LYONS, Appellant, v. TEXAS A & M UNIVERSITY, Appellee.
    No. 1524.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Dec. 29, 1976.
    Rehearing Denied Jan. 19, 1977.

      R. M. Sharpe, Jr., Houston, Rex Woodard, Sanders & Sanders, Beaumont, for appellant.
    John L. Hill, Atty. Gen. of Texas, Richard L. Arnett, Asst. Atty. Gen., Austin, for ap-pellee.
   CIRE, Justice.

This appeal is from the granting of appel-lee’s plea in abatement and the dismissal of appellant’s suit.

Appellant Earl J. Lyons brought suit in the 10th District Court, Galveston County, against appellee Texas A & M University for personal injuries sustained on the University’s vessel, the Texas Clipper, while serving in the ship’s crew as a cook. His petition alleged that the University, through various negligent acts and unsea-worthy conditions on the vessel, caused his injuries when a box fell on him in a storeroom of the ship. He brought suit under the Jones Act, 46 U.S.C. § 688 (1970), the “general maritime law,” the Texas Tort Claims Act, Tex.Rev.Civ.Stat.Ann. art. 6252-19 (1970), and “all other applicable laws.”

The University filed a plea in abatement and plea to the jurisdiction. After a hearing, the district court sustained the plea in abatement and dismissed the suit, holding that the State had not consented to be sued and had made the Texas A & M workmen’s compensation statute, Tex.Rev.Civ.Stat. Ann. art. 8309b (1967), the exclusive remedy for appellant Lyons.

Lyons appeals on three points of error. In his first point he contends the trial court, sitting as a court in admiralty, erred in dismissing this suit on the basis of sovereign immunity. In admiralty Lyons would have three possible remedies against his employer: (1) a suit to recover damages for negligence under the Jones Act; (2) a claim for maintenance and cure; and (3) an action for damages for unseaworthiness. Gilmore & Black, The Law of Admiralty § 6-6 (2d ed. 1975). We hold that these actions cannot be brought against the State without its consent and that the State has not consented to be sued in this case.

The Supreme Court of Texas has recently held that the State is not liable for its torts in the absence of a constitutional or statutory provision; that state universities share this immunity; and that waiver of the immunity is a matter for the Legislature. Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.Sup.1976). Appellant has not presented any statute, general or special, authorizing a suit against the State under the Jones Act or the general maritime law. The State is clearly immune from suits in personam brought under the general maritime law without its consent. Ex parte State of New York, 256 U.S. 490, 497, 500, 41 S.Ct. 588, 589, 590, 65 L.Ed. 1057, 1060, 1062 (1921). Nor does it appear that a suit may be brought against the State in its own courts under the Jones Act without its consent. The Supreme Court of the United States has not spoken on this matter, nor has it been considered in Texas, but the supreme courts of two other states have considered the question and held that a state must waive its sovereign immunity before a Jones Act suit may be brought against it. Gross v. Washington State Ferries, 59 Wash.2d 241, 367 P.2d 600, 602 (1961); Maloney v. State, 3 N.Y.2d 356, 165 N.Y.S.2d 465, 144 N.E.2d 364, 367 (1957). The first point is overruled.

Appellant’s second point assigns error in the trial court’s ruling that the State had not consented to be sued under the Texas Tort Claims Act and his third point attacks the court’s ruling that article 8309b is his exclusive remedy. We overrule these points.

The Texas Tort Claims Act, while waiving the State’s governmental immunity in part and granting a remedy against it, limits that remedy with regard to government employees. Section 19 of the Act provides:

Any governmental unit carrying Workmen’s Compensation Insurance or accepting the provisions of the Workmen’s Compensation Act of the State of Texas shall be entitled to all of the privileges and immunities granted by the Workmen’s Compensation Act of the State of Texas to private persons and corporations.

The Workmen’s Compensation Act includes all of Title 130 of the Revised Statutes, being articles 8306 to 8309a (the general compensation law) and articles 8309b to 8309h (laws providing coverage for certain groups of public employees). Appellee Texas A & M University carries workmen’s compensation insurance, under a statute specifically providing therefor. Tex.Rev. Civ.Stat.Ann. art. 8309b (1967). The Legislature has not waived governmental immunity in tort suits by state employees. Rather, it has retained the immunity and provided an alternative remedy through workmen’s compensation.

Appellant correctly points out that in general, the workmen’s compensation statutes do not apply to seamen. The general compensation law provides coverage for “employees,” and the definition of “employees” excludes “seamen on vessels engaged in interstate or foreign commerce . .” Tex.Rev.Civ.Stat.Ann. art. 8309, § 1 (1967). This exclusion of seamen from workmen’s compensation statutes was directed by a series of Supreme Court decisions, beginning with Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917); see Gilmore & Black, The Law of Admiralty, supra, § 6-45. The State, however, is immune from suit without its consent. It could provide any remedy it wished and limit seamen to that remedy exclusively. See Maloney v. State, supra at 361, 165 N.Y.S.2d at 469, 144 N.E.2d at 367.

Appellant’s remedy here is not under the general workmen’s compensation laws which apply to private employers, but rather under article 8309b, a special law applicable to Texas A & M University. It is significant that article 8309b does not adopt the definition of “employee” found in section 1 of article 8309, nor is such term ever used in this article. For the term “employee” article 8309b substitutes “workman” and defines it thus: “ ‘Workman’ shall mean every person employed in the service of any institution as defined above, whose name appears on the payroll thereof.” Tex. Rev.Civ.Stat.Ann. art. 8309b, § 2 (Supp. 1976).

Appellant is a workman employed by Texas A & M University. The Texas Tort Claims Act gives the University all the privileges and immunities granted by article 8309b, and section 6 of article 8309b makes its remedy exclusive.

Judgment is affirmed.