author: ELLIS, Chief Justice.

text:
    MOORE COUNTY, Texas, Appellant, v. Bill BERGNER, Individually and as Representative of the Estate of John C. Bergner, Deceased, Appellee.
    No. 8527.
    Court of Civil Appeals of Texas, Amarillo.
    Aug. 11, 1975.

      Lovell, Lyle, Cobb & Renfer, Dumas (Thomas C. Moore), Dumas, for appellant.
    Whittenburg Law Firm, Amarillo (George Whittenburg), Amarillo, for appel-lee.
   ELLIS, Chief Justice.

Plaintiff, Moore County, Texas, brought suit to enjoin defendant, Bill Bergner, individually and as representative of the Estate of John C. Bergner, deceased, from obstructing a public roadway and easement claimed by plaintiff-appellant across defendant-appellee’s land in Hutchinson County, Texas. No issue has been made of the right of Moore County to maintain the action.

After a jury trial both parties moved for judgment upon the verdict. The trial court granted the defendant’s motion and rendered judgment decreeing that plaintiff-appellant take nothing by its suit. Affirmed.

Appellant claims the existence of an easement by estoppel in pais, based upon the alleged oral representations of John C. Bergner, deceased, and upon the alleged detrimental reliance thereon by appellant. The claimed easement allowed a public roadway to join an existing road in Moore County, Texas, with other roads in Hutchinson County, Texas to provide public access to an area of Lake Meredith known as Blue East. Appellant asserts that it relied upon oral representations made by John C. Berg-ner generally to acquire a means of public access to Lake Meredith and specifically to acquire two other express easements for the purpose of completing the roadway to Lake Meredith.

In substance, the jury, answering six special issues, found: (1) John C. Bergner represented to the Moore County Commissioners Court that he would allow the public the permanent use of the roadway in question across his land to connect with the express easements which were to be obtained in Moore County; (2) appellant believed and relied upon the representations of John C. Bergner; (3) but for such belief and reliance, appellant would not have obtained the express easements in Moore County; (4) appellant spent money in reliance upon such representations; (5) the money spent by appellant will not be lost and valueless if the road across the Bergner land is closed; (6) after the express easements in Moore County were obtained, John C. Bergner allowed the public to use the road across the Bergner land.

On appeal appellant complains of the action of the trial court in: (1) failing to disregard as immaterial the jury’s response to Special Issue No. 5, since the elements of appellant’s cause of action were established by the jury’s response to Special Issues Nos. 1 through 4; (2) overruling appellant’s motion for judgment upon the verdict; (3) granting appellee’s motion for judgment upon the verdict.

Initially, we shall consider appel-lee’s contention that appellant has failed to properly preserve any error for appeal in its motion for new trial. Appellee urges that assignments of error in a motion for new trial must specify the particular objection to action of the trial court. In his brief appellee asserts that appellant has failed to preserve error properly “. . . if a motion for new trial is a prerequisite for this appeal. . . .” We find that under Rule 324, Texas Rules of Civil Procedure, “. . . neither a motion for new trial nor an assignment therein shall be a prerequisite to the right to complain on appeal of the action of the court ... in overruling a motion for judgment on the verdict made by the party who becomes appellant; (emphasis added). Proper construction of this rule reveals that in cases where a motion for new trial is not required, as in the instant case, all errors complained of on appeal must be based upon the same grounds that were stated in support for the motion for judgment on the verdict, which were overruled by the trial court. We recognize that error not grounded in the overruled motion for judgment on the verdict must be asserted in a motion for new trial as assignments of error. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960). However, under Rule 324 the inclusion of the assignments in the motion for new trial is not necessary since the errors asserted here were properly preserved in appellant’s prejudgment predicate, its motion for judgment on the verdict.

The appellee urges that appellant’s second and third points of error fail to meet the requirements of specificity of Rule 418, T.R.C.P., in that they are too broad to be meaningful since these points complain of the trial court’s overruling of appellant’s motion for judgment on the verdict and its granting appellee’s motion for judgment on the verdict. In support of this contention appellee cites Bookout v. Pugh, 513 S.W.2d 281 (Tex.Civ.App.—Corpus Christi 1974, no writ). We recognize that Bookout holds that the contents of appellate briefs must be sufficiently specific to direct the reviewing court’s attention to the error relied upon, but the facts in the instant case can be distinguished from the facts in the Book-out case. In that case the averments contained in the plaintiff’s motion for judgment on the verdict were general aver-ments of liability, that certain evidence was undisputed and that the court should enter judgment for the plaintiff. The motion was expressly overruled, and on appeal plaintiff complained only in general terms that “ ‘the trial court erred in overruling plaintiff’s motion for judgment.’ ” The opinion specifically set out that the point was insufficient to direct the court’s attention “to any particular reason why judgment should have been rendered for plaintiff.”

In the instant case appellant, in its motion for judgment, enumerated the grounds on which it relied, i. e., its contention that the answer to Special Issue No. 5 should be disregarded as immaterial and that the remaining answers to special issues were sufficient to support judgment for the appellant. The points asserted call the court’s attention to the questions raised and discussed in appellant’s brief. If we can determine from the points of error, the statements, and the arguments the complaints presented by appellant’s brief, then we will liberally construe the briefing rules to pass on the merits of the case. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943); Charlie Thomas Crtsy. Ford, Inc. v. Sid Murray Agcy., 517 S.W.2d 869 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n.r.e.). It is therefore our opinion that appellant’s second and third points of error, together with the brief submitted, are sufficient to justify our consideration under Rule 418.

In view of the foregoing, appellee’s contentions to the effect that appellant has waived its points of error, either as a result of failure to assign error in its motion for new trial, or to comply with Rule 418, T.R. C.P., are overruled.

The appellant contends in its first point that the trial court erred in failing to disregard the jury’s response to Special Issue No. 5 as being immaterial and urged that the elements of its cause of action were established, in the jury’s answers to Special Issues Nos. 1-4. A review of the record reveals that the appellant made no objection to the submission of Special Issue No. 5.

The appellee contends that the judgment rendered in his favor is supported by the jury’s response to Special Issue No. 5 and that by reason of such answers the appellant has failed to establish by a preponderance of the evidence detrimental reliance, a vital element of its cause of action. The appellee insists that the appellant’s case was tried, submitted and argued on the theory that the money it spent would be lost and of no value if the roadway in question were closed. Appellee further points out that Special Issue No. 5 was the only issue in this case inquiring specifically whether and to what degree the reliance by the appellant was detrimental, and that the jury found against the appellant.

At the outset appellant must confront the Statute of Frauds and the Statute of Conveyances, the substance of which has remained in force since the days of the Republic of Texas. Drye v. Eagle Rock Ranch, Inc., 864 S.W.2d 196 (Tex.1962). As an exception to the writing reojuirememt, appellant urges that appellee is estopped to deny the existence of the easement that grew out of the oral representations of John C. Bergner and appellant’s reliance thereon. Unless appellant can bring its case within the single exception urged, it cannot prevail to create by parol the interest in the land that it claims.

The question of detrimental reliance was considered by the Texas Supreme Court as early as 1875 in Harrison v. Boring & Kennard, 44 Tex. 255. In that case the plaintiff claimed an easement which the defendant contended would be in violation of the Statute of Frauds or the Statute of Conveyanc-ers since the interest claimed was based on oral representations and reliance thereon. The Supreme Court recognised the general rule that an easement is an interest in land which must be granted in writing, but that upon equitable grounds an oral representation detrimentally relied upon by the claimant may create an easement by estoppel in pais. The rule was announced in Harrison and remains unchanged, since the Supreme Court said: . . ‘[W]here [one] has by parol agreement granted a right to such easement in Ms land, upon the faith of which the other party has expended moneys which will be lost and valueless if the right to enjoy such easement is revoked, equity has enjoined the owner of the first estate from preventing the use of it.’ ” Id. at 267-268. (emphasis added). The Supreme Court in Drye, cited Harrison v. Boring with approval and expressed its reluctance to extend the doctrine of estoppel in pais. Also, the requirement of detrimental reliance was an element of the definition of estoppel in pais set forth by the court in Drye. In Harris v. Rabe, 375 S.W.2d 919 (Tex.Civ.App.—Waco 1964, no writ), the Court of Civil Appeals first quoted the above language from Harrison v. Boring, then recognized: “Our Supreme Court has not seen fit to modify or change the foregoing rule.” Id. at 922.

The rule set forth in Harrison v. Boring with respect to detrimental reliance has been reaffirmed in various eases either by direct reference to Harrison or by language indicating that under the facts some sort of unrecovered expenditure was made by the claimant, i. e., that the very essence of detriment is loss without recoupment. Bickler v. Bickler, 391 S.W.2d 106 (Tex.Civ.App.—Austin 1965), aff’d in part, rev’d in part on other grounds, 403 S.W.2d 354 (1966); Union Properties Company v. Klein, 333 S.W.2d 864 (Tex.Civ.App.—Eastland 1960, writ ref’d n.r.e.); Johnson v. Back, 378 S.W.2d 723 (Tex.Civ.App.—Amarillo 1964, no writ); Harris v. Rabe, supra; Bowington v. Williams, 166 S.W. 719 (Tex.Civ.App.—El Paso 1914, no writ). See also North Clear Lake Development Corp. v. Blackstock, 450 S.W.2d 678 (Tex.Civ.App.—Houston [14th Dist.] 1970, writ ref’d n.r.e.); Anderson v. Tall Timbers Corporation, 378 S.W.2d 16 (Tex.1964); 4 Lange Tex. Land Titles § 377, at 149 (1961). In none of the eases cited does the court indicate an abandonment of the requirement of loss or detriment that must be sustained by the claimant, or a modification of the elements of estoppel in pais as set forth in Harrison v. Boring. Further, these authorities demonstrate an adherence to the long established rule that the doctrine of estoppel in pais should be strictly applied when relied upon as an exception to the requirement that an easement must be created by a writing.

Appellant cites Carleton v. Dierks, 203 S.W.2d 552 (Tex.Civ.App.—Austin 1947, writ ref’d n.r.e.); Johnson v. Back, supra. Doss v. Blackstock, 466 S.W.2d 59 (Tex.Civ.App.—Austin 1971, writ ref'd n.r.e.); Drye v. Eagle Rock Ranch, Inc., supra, in support of its contention that the jury’s answer to Special Issue No. 5 is unnecessary to establish detrimental reliance. In Carleton the court once again quoted the language of Harrison v. Boring and made no indication that the requirement of detrimental reliance had been abandoned. Appellant urges that because in Carleton the defendant tendered to the registry of the trial court “the amount of money as may be legally determined to be due and owing to the plaintiffs for the expenditures that the plaintiffs have been put to on reliance upon the oral agreement,” and an easement by estoppel in pais was yet found to exist, the rule announced in Harrison v. Boring has been abandoned or modified, 203 S.W.2d, at 554. We disagree. The tender made by the defendant in Carleton was by trial amendment offered after the close of the plaintiffs’ case and near the end of the defendant’s evidence. The tender by trial amendment was denied as untimely offered. The defendant, upon appeal, made no complaint of the refusal to permit the trial amendment. Thus, the expenditure made by the plaintiffs in Carleton remained as moneys lost and valueless, since recoupment was not an issue.

The court in Johnson quoted from Harrison v. Boring. The one claiming an easement by estoppel in Johnson had expended more than $30,000 on improvements in reliance upon the oral representations made by the landowner. In that case the evidence showed that a revocation of the easement claimed would render the improvements valueless; thus, the claimant would suffer a detriment. The court in Doss held that detrimental reliance may be by an expenditure other than upon the servient estate. Doss represents no attempt to modify the requirement of detrimental reliance. We have previously discussed Drye and the reluctance of the Supreme Court to extend the doctrine of estoppel in pais to create an easement by parol.

Appellant asserts no deficiency of evidence to support the jury’s response to Special Issue No. 5. Appellant contends only that the trial court should have disregarded the jury’s response to Special Issue No. 5 as being immaterial and inconsequential. The rule in Texas, recognized since 1875, is that detrimental reliance is a vital element of estoppel in pais. Since appellant did not secure a finding of loss or detriment, it failed to meet its burden of proof with respect to that element of its cause of action. Appellant’s points of error are overruled.

Since we have held that appellant failed to establish detrimental reliance, an essential element of the cause of action in this case, we do not reach the appellee’s various challenges to the evidentiary support for the jury’s responses to Special Issues Nos. 1 and 2 regarding Bergner’s representations and appellant’s reliance thereon. However, in the event it should be determined that our passing on such questions regarding the legal and factual sufficiency of the evidence on these matters is necessary and proper, it is our opinion and we would so hold that the record establishes that there is evidence of probative force to raise questions of fact and that such evidence is sufficient to support the jury’s responses to Special Issues Nos. 1 and 2. In Re King’s Estate, 150 Tex. 622, 244 S.W.2d 660 (1952).

For the reasons above stated the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    Ex parte Edward Regis LIMOGES.
    No. 12359.
    Court of Civil Appeals of Texas, Austin.
    Aug. 13, 1975.
    Rehearing Denied Aug. 20, 1975.
    Mike Barclay, Dallas, for relator.
    John P. Jones, Domestic Relations Office, Travis County, Austin, for respondent.
   O’QUINN, Justice.

This is an original habeas corpus proceeding filed in this Court by Edward Regis Limoges who seeks his discharge from custody of the sheriff of Travis County. Upon presentation of Relator’s application on July 10, 1975, this Court directed issuance of the writ and ordered release of Relator upon his posting the bond fixed by this Court.

Relator was found guilty of contempt by the court below, and penalty for that contempt was “set at a fine of $500 plus six months in jail.” Grounds for the contempt order, as stated by the court from the bench at the conclusion of the contempt hearing on July 10,1975, appear to be twofold. The first ground rests on Relator’s failure to comply with an order contained in a divorce decree of March 17, 1972, directing Relator, as defendant in that suit, to pay $80 per week, beginning March 24, 1972, for support of a minor child. The second ground stated by the court is that Relator, after being served in Dallas County with “notice of this proceedings” on “May 21, 1975, at 7:17 p. m. . . . has made no effort to contribute support” between that date and the date of hearing.

In the hearing before this Court, held July 28, Relator attacked the contempt order on several grounds, stated under three points of error.

The first two points are directed to errors found in the proceedings below between issuance of notice to Relator on April 29, 1975, and the end of the hearing on July 10. Although not without merit, these points assign errors of less gravity than the error attacked by the third and last point.

Under the third point of error, which we will sustain, Relator urges that the district court did not have jurisdiction to enter an in personam judgment in the divorce case in 1972, ordering payment of money for child support, and the contempt order therefore was void.

The record shows that Relator was married to Kathi Kinzie Limoges about June 19, 1970, and that the couple separated about the middle of the following January, 1971. A child of the marriage was born later, on June 5, 1971, and thereafter Mrs. Limoges filed suit for divorce, for custody of the child, and for child support. Service on Relator was by publication only, early in 1972, and in the final judgment entered March 17, 1972, Mrs. Limoges was granted a divorce, obtained custody of the child, and Relator was ordered to pay $30 a week as child support.

Relator testified at the hearing, and in his original brief in this Court asserts, that after he and Mrs. Limoges separated early in 1971, he left this state and did not return to Texas until sometime in 1973; that at the time of service by publication in the divorce suit Relator was not a resident of Texas, nor was he domiciled in this state; and that he had no actual notice of the petition for divorce until May of 1975, after he was served with notice to appear and show cause in the contempt proceedings. These statements have not been challenged by any opposing party and' will be accepted by this Court as correct. Rule 419, Texas Rules of Civil Procedure; Ex parte Arledge, 459 S.W.2d 941 (Tex.Civ.App.Texarkana 1970). The judgment in the divorce suit shows the Relator appeared only by counsel appointed by the court.

Constructive service on a nonresident, such as service by publication, will not confer jurisdiction on a court to enter a personal judgment against a party, as opposed to a judgment in rem. An action in personam seeks to establish personal liability, whereas a judgment in rem declares only the status of a person or thing. See Words and Phrases; Jones v. Teat, 57 S.W.2d 617, 620 (Tex.Civ.App.Texarkana 1933), affmd., 126 Tex. 480, 89 S.W.2d 987.

The rule is stated in American Jurisprudence in this language: “A personal judgment based on constructive or substituted service on a nonresident who does not appear or otherwise assent to such mode of service is contrary to due process of law, and is not valid either in the state where rendered or elsewhere. This doctrine applies to all kinds of constructive or substituted process, whether service by publication, or personal service beyond the jurisdiction in which the judgment is rendered.” 62 Am.Jur.2d Process, sec. 77, p. 858 (1972).

The doctrine has been applied by Texas courts in cases involving judgments awarding child support. Woodworth v. Woodworth, 277 S.W.2d 828 (Tex.Civ.App.Beaumont 1955, no writ); Risch v. Risch, 395 S.W.2d 709 (Tex.Civ.App.Houston 1965, writ dism’d), cert. den., 386 U.S. 10, 87 S.Ct. 881, 17 L.Ed.2d 70S. See also Grubbs v. Grubbs, 164 S.W.2d 216 (Tex.Civ.App.San Antonio 1942, no writ).

The district court had jurisdiction in 1972 to enter judgment of divorce and to award custody of the child to Mrs. Limoges, but service by publication did not confer jurisdiction of Relator, then a nonresident, to support a money judgment against him for child support. Armstrong v. Armstrong, 350 U.S. 568, 76 S.Ct. 629,100 L.Ed. 705, 715; Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456, 1459. In Vanderbilt the Supreme Court stated, “It has long been the constitutional rule that a court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant.”

Insofar as the judgment in 1972 attempted to require Relator to pay child support it was void, and Relator may not now be held in contempt for failure to make such payments. At the outset of- the hearing in the court below Relator sought to quash the motion for contempt and to obtain a reformation of the divorce judgment to provide for payments of child support to commence at once. The trial court rejected Relator’s offer and stated, “The motion to quash is considered to be an attack, a collateral attack on the judgment which I refuse.” Near the end of the hearing the trial court stated, “. . . this is an exercising [exercise in] futility anyhow, anything like this is a direct attack, collateral attack on the judgment entered in 1972, which the Court feels is immaterial and irrelevant. It can’t be attacked and can’t be imputed [impugned].”

Before this Court counsel for Respondent has taken the position that “Relator’s attack on the divorce decree constitutes a collateral attack. Where all proceedings in the trial court which entered the decree of divorce were regular, the decree is not subject to attack except by direct means.” In support of this position, counsel relies on Hartel v. Dishman, 135 Tex. 600, 145 S.W.2d 865, 870 (1940), which is not in point.

The petition for divorce alleged, “Respondent’s . whereabouts are unknown.” The judgment recited, “. . . the Respondent, having been duly served and legally cited by publication in the manner and for the time required by law, appeared by an attorney appointed by the Court to defend this suit in his behalf.” It is clear from the judgment that Relator, as defendant in that suit, made no personal appearance after being cited by publication.

When proceedings were instituted to enforce the judgment, by motion to hold Relator in contempt for nonpayment of child support, Relator was entitled to show want of jurisdiction to impose on him a judgment in personam.

The Supreme Court very early held that want of jurisdiction “. . . may always be set up when a judgment is sought to be enforced or any benefit claimed under it; and this is not inconsistent with the principle which forbids the impeachment or contradiction of a record.” Fitzhugh v. Ouster, 4 Tex. 391 (1849). The rule appears to be fairly universal, as stated in American Jurisprudence: “The general rule is that the absence of jurisdiction of a court to render a particular judgment constitutes sufficient cause for a collateral attack upon the judgment whenever it is sought to be enforced, or in any suit in which its validity is drawn into question, whether the absence of jurisdiction is in regard to the subject matter, the parties, or, in proceedings in rem, the res.” 46 Am Jur.2d Judgments, sec. 657, pp. 812-13 (1969). Texas cases in which the doctrine is recognized include Switzer v. Smith, 300 S.W. 31, 32 (Tex.Comm’n App. 1927, jdgmt. adopted); Reistino v. Chandler, 156 B.W.2d 1008 (Tex.Civ.App.Waco 1941, no writ); Farmers’ National Bank v. Baggett, 2 S.W.2d 834 (Tex.Comm’n App. 1928, jdgmt. adopted); Childers v. Johnson, 143 S.W.2d 123 (Tex.Civ.App.Austin 1940, no writ).

In all instances, when the record affirmatively reveals a jurisdictional defect, as it does in this case, successful collateral attack may be made. White v. White, 142 Tex. 499, 179 S.W.2d 503 (1944); Cox v. Campbell, 257 S.W.2d 462 (Tex.Civ.App.Dallas 1953, writ ref.).

In sustaining Relator’s third point of error and holding that the judgment of 1972 is void, insofar as it sought to impose upon Relator a judgment in personam for the payment of money, and may not be enforced by punishment for contempt, we do not reach the other grounds relied on by Relator, since full relief must be granted him for the reasons stated under the third point. Ex parte Holden, 144 Tex. 295, 190 S.W.2d 485 (1945).

It is the order of this Court that Relator be discharged from the contempt judgment and that Relator’s sureties be released from liability on his bond. It is further ordered that the fine of $500 imposed on Relator be remitted.


author: MOORE, Justice.

text:
    J. B. STELZER et al., Appellants, v. Bill Ray HUDDLESTON et al., Appellees.
    No. 834.
    Court of Civil Appeals of Texas, Tyler.
    Aug. 14, 1975.
    Rehearing Denied Sept. 4, 1975.

      William M. Boyd, Boyd, Veigel & Gay, Inc., McKinney, for appellants.
    Ralph Elliott, Elliott <& Nall, Sherman, for appellees.
   MOORE, Justice.

This is a school bond election contest. Appellants (contestants) brought suit against appellee, Celina Independent School District, contesting the validity of the election held on April 27,1974, upon two propositions, to-wit: (1) whether to authorize Board of Trustees to levy an ad valorem tax as authorized by Section 20.04 of the Texas Election Code and (2) whether bonds should issue in the amount of $1,430,000.00 for school building purposes. The election carried in favor of both propositions by approximately two to one majority. The trial court, sitting without a jury, entered a “take nothing” judgment against appellants, thereby impliedly sustaining the results of the elections from which judgment appellants perfected this appeal.

Neither party requested findings of fact nor conclusions of law and as a result the record is before us by way of a statement of facts only.

Appellants urge by their first two points of error that the trial court erred in refusing to rule that the bond election was void, or in the alternative was voidable, because of the school board’s failure to give proper notice of the meeting at which the school trustees voted to call the election and its meeting to canvass the election returns. The basis of appellants’ contention is that the School District’s notices of the meetings did not comply with the public notice provisions of Article 6252-17, Vernon’s Ann.Civ. St., known as the “Texas Open Meeting Law.” The pertinent provisions of the statute are as follows:

“Sec. 3A. (a) Written notice of the date, hour, place, and subject of each meeting held by a governmental body shall be given before the meeting as prescribed by this section.
“(e) A school district shall have a notice posted on a bulletin board located at a place convenient to the public in its central administrative office and, in addition, shall either furnish a notice to the county clerk in the county in which most, if not all, of the school district’s pupils reside or shall give notice by telephone or telegraph to any news media requesting such notice and consenting to. pay any and all expenses incurred by the school district in providing special notice.
“(h) Notice of a meeting must he posted for at least 72 hours preceding the day of the meeting, except that in case of emergency or urgent public necessity, which shall be expressed in the notice, it shall be sufficient if notice is posted two hours before the meeting is convened. In the event of an emergency meeting, the presiding officer or the member calling such meeting shall, if request therefor containing all pertinent information has previously been filed at the headquarters of the governmental body, give notice by telephone or telegraph to any news media requesting such notice and consenting to pay any and all expenses incurred by the governmental body in providing such special notice. The notice provisions for legislative committee meetings shall be as provided by the rules of the house and senate.” (Emphasis added.)

The facts, when viewed in a light most favorable to the judgment, reveal that the School District was seriously below the accreditation standards set by the Texas Education Agency. It had been warned that its physical plant did not meet the standards set by the agency and unless some action was taken to comply, the District would lose all State aid, accounting for eighty percent of all funds supporting the School District. On December 10,1973, the Celina School Board commenced discussion of a building program. Thereafter, the Board held numerous meetings with architects and financial advisors and finally determined that a school bond election would be necessary. On March 18, 1974, the Board met and upon finding that the cost figures for the building program were not yet available, called a special meeting for March 26th, anticipating that by March 26th the cost figures would be available so that the bond election could be ordered at such time. Shortly after the March 18th meeting the local weekly newspaper, the Celina. Record, was notified that the School Trustees had decided to meet again on March 26th for the purpose of calling a school bond election. On March 21st the newspaper carried an extensive, page one report of the March 18th meeting and stated that at the March 26th meeting the School Board would further discuss the building program and the calling of a bond election. Noel Johnson, the Board’s financial advisor, testified that in an effort to comply with the “notice” provisions of the statute he went to McKinney on March 22nd and posted a notice of the March 26th meeting on the courthouse bulletin board. He further testified he posted another notice of the March 26th meeting on the bulletin board at the school two hours before the meeting. Perry Morris, the School Superintendent, testified he too posted a notice of the March 26th meeting on the school bulletin board shortly after 8:00 a. m. on March 25th. The notice posted by Superintendent Morris stated that the meeting would be held in the High School library at 7:30 p. m., and further stated that the purpose of the March 26th meeting was to discuss the building program and the calling of a bond election. The Board convened in open meeting on March 26th in the Celina High School. While the only parties appearing at the meeting were the school trustees, architects and the financial advisor, it is without dispute that no person was excluded from the meeting and that at no time did the School Board hold a closed meeting or have any discussion outside the open meeting room where the meeting was held. After an extended discussion, the school trustees called the election in question for April 27, 1974.

Appellants argue that since the undisputed evidence shows that the notices which were posted on the school bulletin board were not posted for a full 72 hours before the day of the meeting, the action of the School Board in ordering the election was void or voidable. Appellants take the position that literal compliance with the notice provisions of the statute is required. Consequently, they maintain that even though the School Board complied with the statute by giving notice to the local newspaper, since notice was not posted on the school bulletin board for the full 72 hours prior to the meeting, the order calling the bond election was void for lack of public notice and substantial compliance was not sufficient. We cannot agree with this proposition.

This is not a situation where the “open meeting law” was completely ignored and a closed meeting was held as was the case in Toyah Ind. Sch. Dist. v. Pecos-Barstow Ind. Sch. Dist., 466 S.W.2d 377 (Tex.Civ.App., San Antonio, 1971, n. w. h.). In this case the School Board made an effort to comply with the statute but failed only because the notice was not posted on the school bulletin board for the required length of time. There is nothing to suggest that the failure to post the notice on the school bulletin board for the required time arose from any willful or fraudulent conduct on the part of the School Board and it is without dispute that notice was properly given to the newspaper five days before the meeting.

While it has been held in other jurisdictions that the provisions of statutes similar to this are only directory, in this State it has been held that the provisions of the statute are mandatory. Toyah Ind. Sch. Dist. v. Pecos-Barstow Ind. Sch. Dist., supra. Even though provisions of the statute are mandatory, we hold that the “notice” provisions of the statute are subject to the substantial compliance rule. Federal Crude Oil Co. v. Yount-Lee Oil Co., 122 Tex. 21, 52 S.W.2d 56, 61 (1932); Whiteside v. Brown, 214 S.W.2d 844, 847 (Tex.Civ.App., Austin, 1948, dism’d); State v. Crawford, 269 S.W.2d 536 (Tex.Civ.App., El Paso, 1954, n. w. h.); Lipscomb Ind. Sch. Dist. v. County School Trustees, 498 S.W.2d 364 (Tex.Civ.App., Amarillo, 1973, ref. n. r. e.). The rationale of the substantial compliance rule is that while the notice provisions in statutes are mandatory, they are essentially procedural; that rigid adherence to such a procedural mandate will not be required if it is clear that a substantial compliance provides realistic fulfillment of the purpose for which the mandate was incorporated in the statute. A determination of the applicability of substantial compliance will, of course, depend on the circumstances of each case.

Upon applying the foregoing rules to the facts and circumstances of the present case showing a partial compliance with the notice provision of the statute, we are of the opinion that the objective sought by the “notice” provision has been fully attained and, as a practical matter, the mandate of the statute was fulfilled. There can be no doubt that a large segment of the public was informed of the March 26th meeting by the news media more than 72 hours before the day of the meeting. This, together with the notices posted on the school bulletin board for approximately 15 hours before the day of the meeting and approximately 34 hours before the meeting commenced, amounted to a substantial compliance.

Further, appellants contend that the bond election was void because the notice of the place of the meeting held by the School Board on April 29th to canvass the result of the election failed to comply with the provisions of the statute. In this connection appellants argue that the notice was insufficient because it recited that the April 29th meeting was to be held at its regular meeting place in the “Administration Building,” whereas the undisputed proof was that the School District owned no separate building known as the “Administration Building.” Consequently, appellants contend that the order declaring the result of the election was void for lack of public notice of the place at which the meeting was to be held. We overrule the contention.

The evidence shows that the Celina Independent School District was a relatively small school district having only two buildings situated in the town of Celina. One of the buildings was a large building housing the High School, the other small building situated across the street was known as the agriculture building. While the School District maintained no “Administration Building” as such, the administrative offices, consisting of the superintendent’s offices and the two principals’ offices, were maintained in the High School. The evidence shows that the April 29th meeting was held in these offices in the High School where the administration of District activities is usually conducted. Any person desiring to attend the meeting would naturally have gone to the only building of any significance maintained by the District in the small town of Celina. There is no complaint that anyone was denied admittance to the meeting or was misled by the notice of the meeting place. For these reasons we are of the opinion that the notice of the place of the meeting substantially complied with the statute. Appellants’ first and second points are overruled.

Appellants’ third point reads as follows: “The Trial Court erred when it failed to rule that the qualified voters in the Celina School District were misled into believing that only a slight increase of taxes would be necessary to support the bond issue in question.” The point is without merit and is overruled.

Elections may be contested only on grounds expressly or impliedly authorized by the Election Code. 21 Tex.Jur.2d Elections, sec. 158, p. 413. Article 9.15 of the Texas Election Code authorizes the courts to declare an election void in those instances where it appears that it is impossible to ascertain the true result of an election and in instances where such a number of legal voters were, by the officers or the managers of the election, denied the privilege of voting so as to change the result of the election. In an election contest only such matters as happened on the day of the election and pertaining strictly to the election itself may be inquired into or determined by the courts. Harrison v. Jay, 153 Tex. 460, 271 S.W.2d 388 (1954); Oser v. Cullen, 435 S.W.2d 896 (Tex.Civ.App., Houston, 1968, dismissed). We fail to find any evidence showing that any of the school’s trustees or any other official of the School District stated to the public that only a “slight” increase of taxes would be necessary to support the bond issue. But even if such were the case, under the foregoing rules of law, such alleged misleading statements being made prior to the election could not be inquired into or considered by the court.

By their final point appellants contend the trial court erred in refusing to void the bond election on the ground that four of the election officials who assisted in holding the election were disqualified.

The record reveals that the School Board appointed the School Superintendent, Perry Morris, as the Clerk for absentee voting, and appointed his secretary, Alma Jo Scott, as alternate election judge.

Appellants argue that the appointment of these two parties as election officials was in violation of Article 3.04 of the Texas Election Code which prohibits any person holding an office of profit or trust under the State from acting as an election judge or clerk. The contention is without merit since neither the Superintendent nor his secretary were state officials. Both the Superintendent and his secretary were nothing more than employees of the School District. Aldine Ind. Sch. Dist. v. Standley, 154 Tex. 547, 280 S.W.2d 578 (1955). Perforce of statute, the School Superintendent was eligible for appointment as clerk for absentee voting, if otherwise qualified. Article 5.05, subsec. la(6), Texas Election Code. We find nothing in the statutes prohibiting a secretary of the school superintendent from acting as an election official.

Further, appellants argue that the trial judge erred in refusing to void the election because the undisputed evidence shows that two of the clerks who assisted in holding the election were related to one of the school trustees.

While Article 3.03 of the Texas Election Code prohibits a person from serving as an election judge or clerk who is related to a candidate within the third degree by affinity or consanguinity, we find nothing in the code prohibiting a relative of a school trustee from serving as an election clerk in a school bond election. Even if Article 3.03, supra, could be construed to be applicable, there was no evidence that either of the clerks attempted to exercise any influence on any voter or that there was any unfairness or fraud in the conduct of the election. In these circumstances, the irregularity, if any, would not be sufficient to void the election. Sawyer v. Board of Regents of Claredon Junior College, 393 S.W.2d 391 (Tex.Civ.App., Amarillo, 1965, n. w. h.); Little v. Alto Ind. Sch. Dist. of Alto, Chero kee Cty., 513 S.W.2d 886, 889 (Tex.Civ.App., Tyler, 1974, dism’d).

The judgment of the trial court is affirmed.


author: McDONALD» Chief Justice.

text:
    UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Appellant, v. Willie Lee McBETH, Appellee.
    No. 5474.
    Court of Civil Appeals of Texas, Waco.
    Aug. 14, 1975.
    Rehearing Denied Sept. 18, 1975.
    Cox & Hurt, Plainview, for appellant.
    Charles G. White, Plainview, for appellee.
   OPINION

McDONALD» Chief Justice.

This is an appeal by plaintiff Universal from take nothing judgment against defendant Willie Lee McBeth.

Plaintiff, a creditor of McBeth Dodge, Inc., sued Willie Lee McBeth, James Harold McBeth, David W. McBeth and Bobby D. McBeth upon $2200.10 unpaid balance due on a note for insurance premium executed by McBeth Dodge, Inc., and signed by James Harold McBeth as President.

Plaintiff alleged all defendants were officers and directors of McBeth Dodge, Inc.; that the Corporation’s right to do business in Texas was forfeited by the Comptroller of Public Accounts on August 25, 1969 and its Charter was forfeited on June 26, 1970 for failure to pay franchise tax; that the note sued on was created in the name of the corporation with the knowledge, approval and consent of such officers and directors before the revival of such corporation to do business, and such defendants are liable thereon in the same manner and to the same extent as if they were partners, all in accordance with Article 12.14 VATS Taxation General (Vol. 20A p. 490).

Trial was to the court without a jury, which rendered judgment for plaintiff for $2,200.10 plus interest and attorney’s fees (in total sum of $2,684.28) against defendants James Harold McBeth, David W. McBeth,'and Bobby D. McBeth; and rendered judgment plaintiff take nothing as to defendant Willie Lee FieBeth.

The trial court filed Findings of Fact and Conclusions of Law, summarized as follows:

Findings of Fact
1. The note in the original amount of $3011.45, sued on was signed by James H. McBeth as president of McBeth Dodge, Inc., and delivered to plaintiff on December 18,1970 in payment of past due insurance premiums.
2. A balance of $2,200.10, plus interest of $484.18 is still owed on the note. Reasonable attorney’s fees for plaintiff is $268.43.
3. The right to do business in the corporate charter of McBeth Dodge, Inc., was forfeited June 26, 1970 for failure to pay Texas Franchise Tax, and such has never been reinstated.
4. Willie Lee McBeth was one of the original incorporators of McBeth Dodge, Inc.
5. Willie Lee McBeth was a stockholder of McBeth Dodge, Inc., from its incorporation continuously to and including December 18, 1970.
6. Willie Lee McBeth was one of the original members of the Board of Directors of McBeth Dodge, Inc.
7. The debt represented by the unpaid insurance premiums totalling $3,011.45 was incurred without the knowledge, approval or consent of Willie Lee McBeth.
8. The execution and delivery by J. H. McBeth in behalf of McBeth Dodge, Inc., of the note dated December 18, 1970 in amount of $3,011.45 was done without the knowledge, approval, or consent of Willie Lee McBeth.
Conclusions of Law
1. Willie Lee McBeth is not liable to plaintiff for the balance of the note of $2200.10, or interest or attorney’s fees, for the reason she had no knowledge of the debt and did not approve or consent to the contracting of the same.
2. Plaintiff is not entitled to judgment against Willie Lee McBeth.

Plaintiff appeals on one point: “This case should be reversed because the finding of fact that the debt represented by the unpaid insurance premiums totalling $3011.45 was incurred without the knowledge, approval or consent of Willie Lee McBeth is not supported by the evidence and is contrary to the law.”

Article 12.14 provides that each director and officer of a corporation which has forfeited its right to do business is liable as a partner for all debts after forfeiture created or incurred with the knowledge, approval and consent of any such officer or director.

And First National Bank of Boston v. Silberstein, Tex., 398 S.W.2d 914 holds: “Liability of officers and directors for debts of corporation, which has lost franchise to do business, incurred subsequent to franchise loss is limited to those debts of which they had knowledge, consented to and approved ”.

There is evidence Willie Lee McBeth is the mother of James Harold, David and Bobby McBeth; that the four incorporated McBeth Dodge, Inc., in 1968, and were all original members of the Board of Directors; that McBeth Dodge, Inc., forfeited its charter June 26, 1970, for non payment of franchise tax and its charter has never been reinstated; James Harold McBeth was president and David McBeth was Secretary and both worked in the business; James Harold McBeth actually operated the business; Willie Lee McBeth was a director only in 1968 and no one succeeded her as a director; that on December 18, 1970 James Harold McBeth as President of McBeth Dodge, Inc., executed the note sued on to plaintiff for past due insurance premiums owed by the Corporation; the note was later paid down to $2200.10; that Willie Lee McBeth never interfered in any way with James Harold’s operation of the business, and never performed any services of any type for the corporation; that Willie Lee McBeth knew it was necessary in most businesses to make debts to operate them; that Willie Lee McBeth intended for James Harold to be out there doing whatever was necessary to run the business which included buying, selling, making and paying debts; that Willie Lee McBeth did not know the corporation purchased insurance on a credit, and has never communicated in any manner that she was consenting to the purchase of insurance on a credit or that she approved of purchase of insurance from plaintiff; that she never attended a meeting of the Board after incorporation and never received any notice of Board meetings; that she first learned of the debt of the corporation to plaintiff when she was served.

We overrule plaintiff’s point. The evidence is ample to support findings 1 and 8 that the debt to plaintiff was incurred, and the execution and delivery of the note to plaintiff were done, without any knowledge approval or consent of Willie Lee McBeth.

Affirmed.


author: ROBINSON, Justice.

text:
    Ester GALVAN et al., Appellants, v. J. W. SISK, Appellee.
    No. 8496.
    Court of Civil Appeals of Texas, Amarillo.
    Aug. 18, 1975.

      H. B. Virgil Crawford Law Offices, G. Dwayne Pruitt, Brownfield, for appellants.
    Crenshaw, Dupree & Milam, Max C. Addison, Lubbock, for appellee.
   ROBINSON, Justice.

Plaintiff Ester Galvan brought suit, individually and as guardian and next friend of her minor children, for the death of her husband growing out of a collision between his station wagon and an automobile driven by Garland Avery Sisk in which Sisk’s father, J. W. Sisk, was a passenger. Plaintiff sued both driver and passenger alleging that the Sisks were engaged in a joint venture and alleging negligence on the part of both defendants. Plaintiff appeals from an order granting summary judgment for the passenger, J. W. Sisk, and severing the cause as to him. Affirmed.

The deposition testimony of Garland and J. W. Sisk is the only summary judgment evidence of the circumstances leading to the collision.

At the time of the collision Garland Sisk was driving his own automobile taking his father, J. W. Sisk, from Colorado City Lake where his father was his guest to his father’s home in Levelland. J. W. Sisk had been in poor health and did not feel well enough to drive. He told Ms son that if he would drive him home he would pay for the gas. He gave him $5.00 for gas before they left the lake. Garland Sisk’s wife, accompanied by his mother, followed, driving his father’s automobile. On the way they stopped to visit Garland’s brother for about an hour in Lamesa. The depositions show that Garland had one or two twelve-ounce beers before they left the lake and one in Lamesa.

The collision occurred at about 5:00 p. m. at Brownfield. Garland Sisk had been driving approximately 30 mph. travelling northeast on a service road parallel to a heavily travelled four-lane highway. At an intersection he turned to cross the highway to go to a service station. As he started across the highway, his left front fender and bumper collided with the right side of the Galvan station wagon which was travelling northeast on the highway in the outside lane next to the service road from which Sisk was turning. The impact was not severe, but after the impact the Galvan station wagon veered to the right, hit the median between the highway and the service road and turned over.

By filing its motion for summary judgment, defendant assumed the burden of establishing as a matter of law by summary judgment proof that there was no genuine issue of material fact concerning at least one essential element of plaintiff’s cause of action. Rule 166-A, Texas Rules of Civil Procedure; Gaddis v. Smith, 417 S.W.2d 577, 582 (Tex.1967). If the testimony of an interested witness is to establish a fact as a matter of law, it must be clear, direct, and positive and there must be no circumstances in evidence tending to discredit or impeach it. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972). The general rule is stated in Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178 (Tex.1972), as follows:

“The burden of proof is on the movant, and all doubts as to the existence of a genuine issue of material fact are resolved against him. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true.”

In the case before us we find that the summary judgment evidence establishes as a matter of law that the Sisks were not engaged in a joint venture whereby negligence of the driver could be imputed to the passenger. A joint venture exists only where a driver and an occupant of an automobile have not only a joint interest and purpose in the trip but also an equal right express or implied to direct and control the conduct of each other in the operation of the conveyance. Bonney v. San Antonio Transit Co., 160 Tex. 11, 325 S.W.2d 117, 119 (1959).

The deposition evidence shows that J. W. Sisk did not have the right to direct and control the conduct of Garland Sisk in the operation of Garland Sisk’s automobile. There is no evidence that Garland Bisk relinquished any part of his exclusive right to control his own automobile. Such a relinquishment cannot be inferred from the agreement to share operating costs of the vehicle by paying for the gas. Bonney v. San Antonio Transit Co., supra.

We overrule plaintiff’s further contention, made in her brief, that a master-servant relationship existed between father and son. For a person to be charged with the negligence of another as master he must have the power to control not only what shall be done, but also the details of its performance. 38 Tex.Jur.2d § 241, p. 493; American National Ins. Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370 (1936); Graham v. McCord, 384 S.W.2d 897 (Tex.Civ.App.—San Antonio 1964, no writ).

By her petition plaintiff contends that I. W. Sisk, himself, was negligent in failing to warn Garland Sisk of the approach of the Galvan vehicle. By her motion in opposition to the motion for summary judgment, she contends that he had the duty to watch, warn, direct, and prevent negligent acts.

While the duty of the passenger is measured by the same standard as that of the driver, requiring the exercise of reasonable care, the conduct required by that standard is very different. The driver is in charge of the automobile and the law imposes on Mm the duty to use care in keeping a lookout. The guest, however, is not in control of the automobile and is not ordinarily required to keep a lookout. He may take Ms attention from the road, or go to sleep, or read a book without being negligent. However, if the passenger knows that there will be some peculiar danger that he has some reason to believe that the driver will not perceive unaided, he may be guilty of negligence if he does not keep himself in position to call the danger to the attention of the driver. Likewise, he is not required to call the attention of the driver to excessive speed unless the speed is so great that a reasonable man would recognize its excessive character. Edmiston v. Texas & N.O.R. Co., 135 Tex. 67, 138 S.W2d 526 (1940); Schumacher Co. v. Shooter, 132 Tex. 560, 124 S.W.2d 857 (1939); Dudley v. Whatley, 400 S.W.2d 773 (Tex.Civ.App.—Houston 1966, writ ref'd n. r. e.).

In the case before us the depositions show that Garland Sisk had travelled the road before. It was a clear day. His car was in good condition. Garland Sisk was not speeding. J. W. Sisk had seen nothing to alarm him about his son’s driving. J. W. Sisk was not advising or directing the driving in any way. J. W. Sisk did not look back the way they had come. He did not see the Galvan vehicle until immediately before the collision.

The summary judgment evidence clearly and without dispute negatives the existence of exceptional circumstances resulting in a duty on the part of the passenger to keep a lookout or to 'warn of the approach of the Galvan station wagon.

Plaintiff relies on Brister v. Lasiter, 444 S.W.2d 331 (Tex.Civ.App.—El Paso 1969, writ ref’d n. r. e.). The facts in the case before us are quite unlike those in Brister. There the passengers had undertaken to direct the driver, knew of the dangerous intersection and the need for caution, and knew that the driver was unfamiliar with the road.

We overrule appellant’s point of error. The judgment of the trial court is affirmed.


author: JAMES, Justice.

text:
    Virginia FINDLEY, Appellant, v. Lloyd McWHORTER and Ruby Frances Powers, Appellees.
    No. 5443.
    Court of Civil Appeals of Texas, Waco.
    Aug. 21, 1975.
    Rehearing Denied Sept. 11, 1975.

      Johannes, Robertson & Wilkinson, Ronald L. Wilkinson, Dallas, for appellant.
    Mahanay & Higgins, Robert M. Mahanay, Cleburne, for appellees.
   OPINION

JAMES, Justice.

This is a will contest case. The will had been previously probated in an uncontested proceeding prior to the filing of the contest in question. After trial before the court without a jury, the trial court entered judgment that Contestant take nothing. We affirm.

On December 30, 1971, Mark G. Haynes, the testator, executed the written will in question in the presence of two witnesses. Thereafter he died on July 5, 1973, at the age of eighty-two years. Proponent-Appel-lees Lloyd McWhorter and Ruby Frances Powers filed an application to probate the will on July 17,1973, and thereafter on July 30,1973, the will was probated in an uncontested proceeding with letters testamentary having been issued to Proponents.

Then on January 14, 1974, Contestant-Appellant Virginia Findley, testator’s sister, filed the contest in controversy alleging among other things that testator lacked testamentary capacity on December 30, 1971, the day he executed the will, and prayed that the order probating the will be set aside.

Trial was had before the County Court of Johnson County, Texas, sitting without a jury, after which judgment was entered that Contestant take nothing, from which she appeals on three points of error.

Appellant’s first point asserts the trial court “improperly relied upon the findings, in an uncontested hearing, of his immediate predecessor, rather than properly relying upon his own independent analysis of the evidence presented during the contested proceeding to which Appellant was a party.” We overrule this point.

When the will was admitted to probate in the uneontested proceeding, the trial court’s predecessor in office was the judge who probated the will. At the conclusion of the contested- trial (which is the subject matter of this appeal), the trial court made a few remarks at the time its decision was announced. The court observed in a preliminary way that his predecessor in office had admitted the will to probate, and later on in his remarks the court said, “_and evidently, my predecessor in office also thought the will should be admitted to probate by his findings at the hearing.” (emphasis supplied.) By use of the term “also” the trial court manifestly did not base his ruling on the former action, but merely observed that his predecessor agreed with him. Without detailing the trial court’s remarks, it is clear that his decision was not in any way based upon his predecessor’s ruling, but was founded upon his own weighing of the evidence presented before him.

Appellant’s second point contends “the court erred as a matter of law in its decision that the son of Contestant, Brooks Findley, would have an interest in the estate of Mark G. Haynes if it (the will) were not allowed to continue in probate.” We overrule this point.

The testator had no children, his wife had predeceased him, and Contestant-Appellant Virginia Findley was testator’s sister. Brooks Findley was the son of Contestant Virginia Findley. Brooks Findley actively participated in the trial, and he and his wife Mrs. Wanda Findley both testified as witnesses for Contestant. The record shows that for a time prior to testator’s death, Brooks Findley served as guardian of Mark G. Haynes’s person and estate, and that he (Brooks Findley) and his wife had asserted claims against his uncle’s estate, the exact nature and amounts of which are not disclosed by the record. Moreover, on February 15,1972, about six weeks after testator executed the will in question, Brooks and Wanda Findley executed a warranty deed to the testator to a house and lot in Keene, Texas, and received $12,750.00 cash consideration therefor from the testator.

When the trial court was discussing his weighing of different aspects of the testimony presented at the trial, he remarked, “I have serious reservations about Mr. Findley and his wife since they have an interest in this estate if it were not allowed to continue in probate.”

It is patent from the record that Brooks Findley as a nephew of the testator did not enjoy the status of an heir at law of Mark G. Haynes, because his mother Mrs. Virginia Findley was still alive and was a sister to Mr. Haynes. And certainly Mrs. Wanda Findley, the wife of Brooks Findley, enjoyed no status as an heir at law, since she was not related in any way to the deceased except by marriage. Therefore, when the trial court remarked that Mr. and Mrs. Brooks Findley had an “interest” in the estate, he clearly meant an interest in the sense that they were trying to help Mr. Findley’s mother, and were interested in seeing that her contest was successful. Appellant’s second point is overruled.

Appellant’s third and final point in Appellant’s brief and oral argument contends that the trial court’s failure to find that the testator lacked testamentary capacity is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate (Tex.Sup.Ct.1951), 150 Tex. 662, 244 S.W.2d 660. We cannot say from this record that such finding is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust, and therefore overrule this point.

The proper inquiry in a will contest on the ground of testamentary incapacity (as here) is the condition of the testator’s mind on the day the will was executed, that is, on December 30,1971. Lee v. Lee (Tex.Sup.Ct.1968), 424 S.W.2d 609.

In February of 1971, Mark G. Haynes and his wife Elizabeth, moved to Keene, Johnson County, Texas, from the State of Oregon. From February of 1971 until June 9, 1971, the Hayneses lived in the house with Brooks and Wanda Findley. In June 1971, the Hayneses moved into a house of their own located in Keene, Texas. In October 1971 Elizabeth Haynes died.

Dr. V. L. Thomas, M.D. examined Mark G. Haynes in July 1971. At this time Mr. Haynes complained of extreme letdown, weakness and hurting in his feet and legs, and appeared mentally confused. Dr. Thomas gave him Pavabid and potassium chloride to dilate his blood vessels and relieve his confusion.

Then on December 26, 1971, the testator for the second time was seen by Dr. Thomas, complaining that he was “restless, confused, apprehensive, and real tired.” The doctor gave him some more medicine containing potassium, and at this time he went to a nursing home. Dr. Thomas saw him a third time on January 23, 1972, at which time he complained of “no energy, no ambition, gets tired real easy, and legs are real weak.” The doctor continued him on the potassium to relieve his confusion; however, the doctor testified that Mr. Haynes was able to communicate his condition to him (the doctor) with accuracy enough that he relied upon it in prescribing medication.

In summary, Dr. Thomas’s testimony was to the effect that Mr. Haynes was an elderly man who suffered from senility; that at times he was capable of understanding the nature of business and at other times he was incapable of doing so. However, Dr. Thomas could not say whether Mr. Haynes was capable or incapable on a given day, except those days when the doctor saw him; and specifically on cross-examination he testified that he expressed no opinion on Mr. Haynes’s mental capabilities one way or the other on December 30,1971, the date of execution of the will. He did not see Mr. Haynes on that day. As stated, he had seen him four days previously on December 26, 1971, and twenty-four days afterwards, on January 23, 1972.

Mrs. Wanda Findley testified that on two occasions after Mrs. Haynes died and before t! execution of the will, Mr. Haynes attempted to feed food to the picture of his deceased wife. “He (Mr. Haynes) acted as if she were there.” Moreover, she testified that Mr. Haynes suffered from hallucinations, saying that he would act as if there were people in the room, that “He kept a tire tool by the front door. I asked him, ‘What do you keep that for, Uncle Mark?’ And he said, ‘Those mean men that keep coming in here — I have to use it.’ ”

Mrs. Jean Bowman, cashier of the bank at Keene, Texas, where Mr. Haynes had a safety deposit box, testified that in August and September, 1971, during a period of twenty banking days, Mr. Haynes made eleven visits to his safety deposit box. She testified that this was unusual; however, she did not know the purpose or purposes of these visits. Mrs. Bowman further remembered the occasion when Mr. Haynes came into the bank and signed the will, on which occasion two other people connected with the bank witnessed the will. She said, “I would have thought Mr. Haynes knew what he was doing.” She had had many occasions to observe Mr. Haynes’s conduct and demeanor, because he had often come in the bank to transact business, on many of which occasions she waited on him. She also said in her opinion during the latter part of 1971 that Mr. Haynes had sufficient mental capacity to transact his business affairs. She did say “there are times right before his death (July 1973) that I can’t say he wasn’t senile to an extent.”

O. H. Calicott, an old friend, when asked if, in his opinion, Mark Haynes had the mental capacity to make a will, replied, “I feel that he did.”

Ruby Lee Swanson, a lifelong acquaintance of the testator, said about six months after Mrs. Haynes’s death, that she (Mrs. Swanson) and her husband talked to Mr. Haynes about buying his home for $12,-000.00. The deal did not go through, she said, because Mrs. Wanda Findley called her up and told her they would have to pay an additional $1250.00 for the lot. Mrs. Swanson testified that Mr. Haynes was very disappointed over the deal being dropped, and that his participation in these business discussions were very reasonable and rational. She further testified specifically that on December 30,1971, the date the will was signed, that Mr. Haynes had testamentary capacity.

Bharon Sinclair, an attesting witness to the will and a bank employee testified, “He knew what he had,” that “he always knew how to handle Ms money,” that he executed the will with the formalities as recited in the will, and on that occasion he was sane and knew what he was doing.

Mr. Brooks Findley testified that in his opinion: “_I do not believe Uncle Mark was capable, during the stress of the times in which Aunt Elizabeth was alive and then following that, that he was capable of making a will and having the mental capacity to do so.” He also testified that Mr. Haynes tried to feed food to Ms deceased wife’s picture, that on one occasion after Mrs. Haynes’s death that he thought he had Ms wife in the car and was going to take her for a ride. He also testified that Mr. Haynes was forgetful, and let Ms hazard insurance and his lodge dues lapse. However, this testimony is weighed against the undisputed facts that in February 1972,. about six weeks after the will was signed, Mr. and Mrs. Findley conveyed to Mr. Haynes a house and lot and received from him $12,750.00 in money as consideration therefor. Also that Mr. Haynes filed his deed for record. Mr. Findley also testified that both he and Ms wife had financial claims against Mr. Haynes’s estate, although the record does not show any formal claims filed, or what the nature or amount of such claims might be. Mr. Findley test!-fied that there were times after June 1971 when his Uncle Mark had lucid intervals wherein he was capable of doing business, and “in the discussion of dollars, I think his attention would immediately come.” He testified that at the time he gave the deed to Mr. Haynes that he was selling him only the house and not the lot, although the deed had no such exceptions, and that Mr. Haynes understood what he was telling him.

Prom this record as a whole, we cannot say the trial court’s failure to find that Mr. Haynes lacked testamentary capacity is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. On the contrary, we believe there is strong evidence pointing toward the fact that Mr. Haynes had testamentary capacity at the time he signed the will, although we recognize that there is evidence both ways.

All of Appellant’s points have been carefully considered, and are overruled. Judgment of the trial court is accordingly affirmed.

Affirmed.


author: KEITH, Justice.

text:
    GULF STATE PIPE LINE COMPANY, INC., et al., Appellants, v. ORANGE COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1, Orange County, Texas, Appellee.
    No. 7752.
    Court of Civil Appeals of Texas, Beaumont.
    Aug. 21, 1975.
    Rehearing Denied Sept. 11, 1975.

      Howell Cobb, Beaumont, for appellants.
    Jim I. Graves, Orange, for appellee.
   KEITH, Justice.

Plaintiff below, a water control and improvement district created under and existing by virtue of the provisions of Chapter 51, Texas Water Code, obtained a temporary injunction which restrained Gulf State Pipe Line Company and its contractor engaged in constructing a pipeline from trespassing upon lands owned by the plaintiff. Defendant pipe line company is a corporation holding a valid permit, as a common carrier pipe line, to construct a pipeline in Orange County. It is not necessary for further reference to be made to the appellant contractor since its rights and liabilities are derivative of those of the primary defendant.

Plaintiff owns the surface rights to a ten-acre plot of ground upon which it proposes to erect a sewage disposal plant to serve the area. Although engineering work had begun upon the plans for such improvements, no actual construction had begun at the time of the hearing.

Defendant, apparently inadvertently but without any lawful right, entered upon plaintiff’s land and began the construction of its line. Upon application of plaintiff, the trial judge granted a temporary restraining order without notice and ordered a hearing upon the plaintiff’s application for a temporary injunction pendente lite. Defendant answered this application and by cross-action, invoked the provisions of Art. 3269, Tex.Rev.Civ.Stat.Ánn. (1968), by seeking to condemn the right of way necessary for the construction of its line. It prayed that the temporary injunction be denied, that the court set the amount of a deposit to be made by defendant into the registry of the court so that it could obtain possession of 0.127 acres in the easement which it sought to obtain across a corner of plaintiff’s land. At the conclusion of the hearing, the trial court granted the temporary injunction sought by plaintiff restraining defendant and its contractor from entering upon plaintiff’s land and denied defendant all relief under the cited statute. We have advanced the hearing on the appeal and now dissolve the temporary injunction for the reasons now to be stated.

Defendant’s answer and cross-action was carefully tailored to comply with each of the provisions of Art. 3269. In the ordinary case, where the condemning authority has followed the statute, “it is the ministerial duty of the District Court to comply therewith.” Jefferson County Drainage District No. 6 v. Gary, 362 S.W.2d 305, 307 (Tex.1962). Plaintiff, recognizing the Gary Rule, contends that its property is already devoted to public use and that the pipeline easement would “make the construction of a [sewage treatment] project practically impossible.” Thus, it invoked the “paramount importance” rule first enunciated in Sabine & E. T. Ry. Co. v. Gulf & I. Ry. Co., 92 Tex. 162, 46 S.W. 784 (1898).

This rule was succinctly stated by the Court in this manner:

“[T]he law does not authorize the condemnation of property which has already been dedicated to a public use, when such condemnation would practically destroy the use to which it has been devoted. No express authority is given by our statutes to condemn such property, and the authority cannot be implied from the general power conferred by the law unless the necessity be so great as to make the new enterprise of paramount importance to the public, and it cannot be practically accomplished in any other way.” (46 S.W. at 786)

The rule so enunciated was approved in the recent case of Austin Independent School District v. Sierra Club, 495 S.W.2d 878, 882 (Tex.1973). For other cases discussing this rule, see Ft. Worth Improvement Dist. No. 1 v. City of Ft. Worth, 106 Tex. 148, 158 S.W. 164 (1913); Central Power & Light Co. v. Willacy County, 14 S.W.2d 102 (Tex.Civ.App.—San Antonio 1929, no writ); Quanah, Acme & P. Ry. Co. v. Swearingen, 4 S.W.2d 136 (Tex.Civ.App.—Amarillo 1927, writ ref’d). See also, R. Dau, “Problems in Condemnation of Property Devoted to Public Use,” 44 Texas L.Rev. 1517, 1522 (1966).

Upon the hearing of the application for the temporary injunction, plaintiff labored under the burden of offering competent evidence to prove its probable right to prevail on the final hearing. Millwrights Loc. Union No. 2484 v. Rust Engineering Co., 433 S.W.2d 683, 686 (Tex.1968). Since defendant was entitled to.immediate entry upon plaintiff’s lands upon compliance with an order issued under Art. 3269 [Gary Case, supra], plaintiff was required, in this case, to offer sufficient competent evidence upon such hearing to support a finding by the trial court that the laying of defendant’s pipeline upon the easement over plaintiff’s lands would practically destroy its intended public use thereof. Sabine & East Texas Ry. Case, supra. Only by offering such proof could plaintiff overcome the defendant’s rights under the cited statute.

The only evidence plaintiff offered in connection with such plea was from the president of its board of directors, a layman. Over the objection that such testimony was hearsay, a promise by the court that the author of the statements would be available for cross-examination, and a stipulation by plaintiff’s counsel if such author were not produced the testimony would be disregarded, the witness testified:

“He [plaintiff’s engineer] advised me that in his professional opinion, that we would not be able to build any facilities involving this treatment plant over this pipeline right-of-way, or the pipeline, itself.”

The engineer quoted by the witness was not produced upon the hearing; and, the failure to produce him was no mere oversight.

The only competent evidence on the subject, offered by the defendant from its engineer, was to the effect that defendant’s pipeline buried to a depth of eight feet across a remote corner of plaintiff’s land, would not interfere with plaintiffs proposed use thereof.

Hearsay evidence is not competent testimony and “can never form the basis of a finding of fact or of the judgment of a court; and this is so whether it be objected to or not.” Texas Co. v. Lee, 188 Tex. 167, 157 S.W.2d 628, 631 (1941).

Thus, plaintiff did not establish facts showing its right to the temporary injunction under Art. 3269, as interpreted in Gary, supra. Since the trial court’s order is not supported by any evidence of a substantial and probative character, it necessarily follows that it was an abuse of discretion to grant the temporary injunction. See City of Houston v. Southwestern Bell Tel. Co., 263 S.W.2d 169, 171 (Tex.Civ.App.—Galveston 1953, writ ref’d).

Under the record which we review, it was his ministerial duty to fix the amount of the deposit to be made by the pipe line company as a condition precedent to its taking possession of the easement which it sought in the condemnation proceedings then pending in the District Court. Therefore, we reverse the judgment of the trial court, dissolve the temporary injunction heretofore granted, and remand the cause to the District Court for trial upon the merits under the instructions herein set out.

Upon remand, the trial court is instructed to fix the amount of the security to be deposited by defendant pipe line company in the registry of that court which is necessary to insure plaintiff adequate compensation for its property taken and its damages suffered, together with all other requirements as may be deemed proper by the court to protect the rights of both parties to this litigation. When the said defendant has made the deposit and has met all requirements of the law, and as contained in the court’s order, Gulf State Pipe Line Company shall be allowed immediately to take possession of its rights in plaintiff’s property, pending the final hearing of the cause on its merits. City of Houston v. Adams, 154 Tex. 448, 279 S.W.2d 308, 315 (1955).

The issues on the merits made by the pleadings of the parties are not before us in this proceeding, and this opinion shall not be construed as passing on them, except as specifically discussed herein. Adams, supra.

Reversed and remanded with instructions.

      . Plaintiffs grantor reserved all of the minerals under the ten-acre tract in the conveyance to plaintiff including the right “of ingress and egress, for the purposes of prospecting, drilling, or mining for and storing, saving, and transporting such oil, gas, sul-phur, and other minerals, including connecting lines to a pipeline or a gathering system.”

      . After plaintiff rested at the conclusion of the hearing, the Court asked plaintiffs counsel: “You are not going to call this engineer?” Counsel replied, inter alia, “[A]t this point I don’t think I need him.”

      . While the trial court was free to disbelieve this testimony offered by defendant, in the absence of any competent evidence to the contrary, he was not authorized to find that the opposite was true. Cf., Safeway Stores, Inc. v. White, 162 Tex. 473, 348 S.W.2d 162, 165 (1961).


author: HALL, Justice.

text:
    Betty J. VICKREY, Appellant, v. AMERICAN YOUTH CAMPS, INC., et al., Appellees.
    No. 5436.
    Court of Civil Appeals of Texas, Waco.
    Aug. 28, 1975.
    Rehearing Denied Sept. 18, 1975.

      Andress, Woodgate & Lodewick, William Andress, Jr., Dallas, for appellant.
    Yance, McMullen, Connally & Robertson, Inc., Steve Robertson, Clifton, for appellees.
   HALL, Justice.

American Youth Camps, Inc., and Joe W. Phillips, Jr., brought this suit against Betty J. Vickrey and the trustees in a deed of trust. Although there are lesser issues shown by the pleadings, the main dispute between the parties is the ownership of 175.5 acres of land in Coryell County. While the trial of the case was in progress before a jury, the parties, on October 1, 1974, compromised and settled their differences. The settlement was announced in open court and dictated into the record on that date with the parties as well as their attorneys actively participating in the dictation. The judgment in the case, incorporating the settlement agreement, was later reduced to writing and signed and entered by the court on November 20, 1974. Only Mrs. Vickrey appeals.

In her first and second points of error, the appellant asserts that the judgment cannot stand because it “was not signed by the parties or their attorneys showing active agreement at the time of entry,” and “was not based upon an agreement complying with Rule 11.”

When the parties announced to the court that they had reached a settlement, the court stated: “I do want to say on the record in this case that it is my understanding that the parties to this litigation have compromised the matters in controversy and that for purposes of the record, so that there will be no misunderstanding, that whatever compromise is reached in open court, the court having discharged this jury, will have the effect of an agreed judgment, which will be final in all respects and binding on all the parties and enforceable by the court. Is that agreeable with counsel? Do you understand that?” The attorneys for the parties responded, “We understand your honor,” and “Yes, your honor.” The settlement agreement was then dictated into the record and transcribed by the court reporter. At the ending of the dictation, the court said. “All right, now, it is agreed and stipulated . that the settlement will have the effect of a full and final judgment.” Again, the attorneys responded affirmatively.

Rule 11, Vernon’s Ann.Rules Civ.Proe., provides:

No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.

The settlement agreement was announced and stipulated in full by the parties in open court. In her amended motion for new trial the appellant refers to “the filed transcription of the proposed settlement agreement.” Although the appellant has brought forward a transcription by the court reporter of the agreement, this transcription was not filed with the clerk of the trial court. The filed transcription referred to in the appellant’s motion for new trial is not in the appellate record, which does not purport to be a complete record. The appellate record does not conclusively show that the settlement agreement was not filed of record in the trial court. We presume that it was, as recited in the appellant’s motion for new trial. Thus, the second method for satisfying the provisions of Rule 11 was met, obviating the need for the agreement to be signed by the parties.

. A large part of the appellant’s brief is devoted to the argument that the judgment is invalid because she had changed her mind and was no longer in agreement with its entry at the time it was rendered. In every case cited by the appellant in support of this argument, and in every case we have found on the question in which the judgment was reversed on appeal, the recited facts show that the trial court knew at the time it rendered the so-called consent decree that one of the parties was not in agreement with it. Under our record, notice of the appellant’s asserted disenchantment with the settlement agreement (and the agreement to base judgment upon it) was conveyed to the court for the first time after the judgment was rendered and entered of record, by way of the appellant’s motion for new trial.

The first and second points of error are overruled.

Appellant’s third and final point of error reads as follows: “This purported agreed judgment, not conforming to prior negotiations, cannot stand.” Under this general point, she complains that there are discrepancies between the settlement agreement and the judgment relating to the awards of realty, a note to be executed in her favor, and the boundaries of the divided tracts. The only proof relating to an alleged boundary discrepancy came from the appellant on the hearing of the motion for new trial. She testified, “I had heard that they had changed the borders.” This hearsay testimony is not probative and does not support the complaint. The other complaints are also without support in the record.

The third point is overruled.

The judgment is affirmed.