author: SHANNON, Justice.

text:
    PERMIAN BASIN COACHES, INC., Appellant, v. RAILROAD COMMISSION OF TEXAS et al., Appellees.
    No. 12328.
    Court of Civil Appeals of Texas, Austin.
    Dec. 3, 1975.
    Rehearing Denied Jan. 7, 1976.

      William D. Lynch, Austin, for appellant.
    John L. Hill, Atty. Gen., David Hughes, Asst. Atty. Gen., Michael B. Cotten and Barry K. Bishop, Clark, Thomas, Winters & Shapiro, Austin, for appellees.
   SHANNON, Justice.

Appellant, Permian Basin Coaches, Inc., filed suit in the district court of Travis County to set aside an order of the Railroad Commission of Texas, approving the motor bus application of Taos Transportation Company to operate in West Texas. Appel-lees are the Railroad Commission of Texas and Frank Bryan, Jr., doing business as Taos Transportation Company. In response to appellant’s suit, the appellees filed a plea in abatement and general denial. The district court entered judgment sustaining the plea in abatement and dismissing appellant’s lawsuit. We will affirm that judgment.

The transcript shows that before September 1, 1973, appellant was operating a motor bus company between Midland and Odessa, between Odessa and Presidio, and between McCamey and San Angelo. At appellant’s request, the Railroad Commission placed appellant’s certificates of convenience and necessity in voluntary suspension for a period of time commencing September 1, 1973, and expiring September 1, 1974. Thereafter, appellant again requested and the Commission again granted a further voluntary suspension for a period of time beginning September 1, 1974, and expiring one year thereafter on September 1, 1975. On October 16, 1974, appellant reinstated all of its certificates save one.

On June 20, 1974, Bryan applied to the Commission for authority to perform operations as a motor bus company in the same territory which appellant had served before it had gone into voluntary suspension. Notice of Bryan’s application was published by the Commission in Transportation Division Notice of Hearing No. 7790, served June 26, 1974. The notice provided that the deadline for filing protests to the application was July 11, 1974.

No protests were filed with the Commission by July 11, 1974; as a result, Bryan’s application was placed on the non-contested docket. On July 12,1974, appellant’s notice of protest was received by the Commission. Upon the basis that appellant’s protest was not timely received, the Commission refused to take Bryan’s application from the non-contested docket.

On July 17,1974, Bryan’s application was heard by an examiner on the Commission’s regular, non-contested docket as provided by the Commission’s Rules of Practice and Procedure. Bryan appeared at the hearing and presented evidence in support of his application. On October 10,1974, appellant filed a motion with the Commission to reopen the hearing. On October 30,1974, the Commission entered its final order granting Bryan’s application. The Commission denied appellant’s motion to re-open on November 12, 1974.

In its original petition, appellant pleaded, among other things, that it was authorized to appeal the order of the Commission to the district court of Travis County by virtue of Tex.Rev.Civ.Stat.Ann. art. 911a, § 17 (1964). That statute provides in part, “If any such auto transportation company, association, corporation, or other party at interest be dissatisfied with any order . . . adopted by the Commission, such dissatisfied . . . party may file a petition . . .” setting out its objections in the district court of Travis County. (Emphasis added)

In their plea in abatement appellees asserted two grounds for the abatement of appellant’s suit: (1) that appellant had no standing to oppose the application before the Commission because at the time Bryan’s applications were filed and at the time of the hearing on the non-contested docket, appellant was not conducting and was not authorized to conduct any operations under its certificates of convenience and necessity; and (2) that appellant had no standing to complain of the Commission’s order because of its failure to file a timely protest as required by the Commission’s Rules of Practice and Procedure.

As previously written, the district court entered judgment sustaining the plea in abatement and dismissing the suit.

The district court did not err in sustaining appellees’ plea in abatement. Appellant had no standing to oppose the application because at the time Bryan’s applications were filed and at the time of the hearing, appellant was not conducting and was not authorized to conduct any operations under its certificates of convenience and necessity.

Rule 10 of the Rules of Practice and Procedure for the Transportation Division of the Commission provides as follows:

“Any party in interest may appear in any proceeding before the Transportation Division. All appearances shall be subject to a motion to strike upon a showing that the party has no justiciable or administratively cognizable interest in the proceeding. As applied to proceedings under Article 911a and 911b of the Revised Civil Statutes of 1925 involving operating authority, a party in interest is any carrier operating over a route within that territory or serving any point proposed to be served by any applicant, and transporting any of the same class or classes of commodities or persons proposed to be transported by the applicant.”

It is undisputed that at the time of Bryan’s application and at the time of the agency hearing, appellant was neither operating over any route or serving any point, nor transporting any commodities or persons proposed to be transported by Bryan. This is true for the reason that at those times appellant was in voluntary suspension.

The disposition of this cause is controlled by Lake Transport, Inc. v. Railroad Commission of Texas, 505 S.W.2d 781 (Tex.1974). That case involved an appeal by Lake Transport, Inc., the holder of an inactive contract carrier permit, from the order of the Commission to the district court of Travis County pursuant to Tex.Rev.Civ. Stat.Ann. art. 911b, § 20 (1964). The Commission’s order had authorized the amendment of the existing specialized motor carrier certificate of another carrier. By sustaining a plea in abatement, the district court in that case, in effect, held that Lake Transport, Inc., had no standing to appeal the order of the Commission. In affirming the judgments of this Court and the district court, the Supreme Court reasoned:

“The underlying concept of common carriage is that of a transportation service bound to respond to the needs of the shipping public without discrimination or difference between shippers. The Railroad Commission of Texas, the statutory agency charged with regulating motor carriers using the public highways, decides whether the public convenience and necessity requires a proposed common carrier service. In doing so, consideration must be given to the competitive effect upon presently operating carriers in the area and their continued ability to render effective public service. Railroad Commission v. Jackson, 157 Tex. 32, 299 S.W.2d 266 (1957). Accordingly, motor carriers performing an authorized existing service with which the proposed service will be competitive have the statutory right to appear and protest the granting of a new service on the ground that their service, and that of other existing carriers, is adequate, and hence the proposed service is not required by the public convenience and necessity. A carrier in this position also has a statutory right of appeal to the courts from an adverse order of the Commission. Sec. 20 of Art. 911b, supra. This concept, that interested parties in a proceeding involving motor carrier operating rights are ‘carriers (that) operate over the routes and serve the points’ in question, was recognized by this Court in Brown Express, Inc. v. Railroad Commission, 415 S.W.2d 394 (Tex.1967), citing Railroad Commission of Texas v. Red Arrow Freight Lines, 96 S.W.2d 735 (Tex.Civ.App.1936, writ ref’d). Necessarily, the right of appeal provided by the statute presupposes that an appealing carrier is authorized to perform, and is performing, the character of service authorized by the Commission; thus the appealing carrier is in a position to show not only that the new service will impair its existing service by the loss of sustaining revenues, but also by reason of the availability of the existing services, there is not a public need for the newly authorized service.”

Appellant states correctly that the appealing party in Lake Transport, Inc. v. Railroad Commission of Texas, supra, was a contract carrier and that the carrier’s only contract had been canceled. Appellant also states correctly that the appealing party in Lake Transport, Inc., had participated in the agency hearing. Because of these differences, appellant says that Lake Transport, Inc., is neither applicable nor controlling in this appeal. We do not agree. As the Supreme Court stated in Lake Transport, Inc., the right of appeal presupposes that the appealing carrier is performing the service, and that the existing service will be impaired by the new service, and that there is no necessity for the proposed service because of the existing service. Because appellant had no existing service at all times material hereto, it could not contend that its existing service would be impaired by the proposed service or that there was no public necessity for the new service.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    C. V. JONES et al., Appellants, v. The AUSTIN COMPANY, Trustee, et al., Appellees.
    No. 12322.
    Court of Civil Appeals of Texas, Austin.
    Dec. 3, 1975.
    Rehearing Denied Dec. 3, 1975.
    Second Rehearing Denied Jan. 14, 1976.

      Harry M. Whittington, Walter C. Beardsley, Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for appellants.
    John H. Akin, Pearce, Smith & Akin, Austin, for The Austin Co.
    H. Kirk Hays, Watkins, Ledbetter, Hayden & Ramsey, Austin, for C. L. Logue, Sr.
   ON MOTION FOR REHEARING

SHANNON, Justice.

The opinion of this Court filed on October 22, 1975, is withdrawn, and the following opinion replaces it.

This is an appeal from an order of temporary injunction entered by the district court of Travis County upon application by appel-lee, The Austin Company, Trustee, restraining the appellants from selling a parcel of land at a deed of trust sale.

Appellants are C. V. Jones and wife Margaret D. Jones, the payees of the note, and Harry M. Whittington, the trustee in the deed of trust. The Joneses will be termed “appellants” in this opinion. Appellees are C. L. Logue, Sr., the maker of the note, and The Austin Company, Trustee, a partnership which had assumed the note. Logue intervened in the lawsuit and sought in-junctive relief. The parcel of land in controversy consists of about forty-two acres located in Travis County.

Appellants sold the land in question to Logue in July of 1973. As partial consideration for the parcel of land Logue executed a vendor’s lien note in the sum of $71,000.00 dated July 27, 1973. After the initial payment of $4,970.00, the note was payable in monthly installments of $550.52 beginning on July 27, 1974. The note was made payable in Austin, Travis County, Texas. The note provided, among other things, as follows:

“It is expressly provided that upon default in the punctual payment of this note or any part thereof, principal or interest, and the same as shall become due and payable, or in the event of the breach of any covenant or condition of any lien instrument securing this note, the entire indebtedness secured by the hereinafter mentioned lien shall be matured, at the option of the holder; and in the event default is made in the prompt payment of this note when due or declared due, and the same is placed in the hands of an attorney for collection, or suit is brought on same, or the same is collected through Probate, Bankruptcy or other judicial proceedings, then the makers agree and promise to pay ten per cent (10%) additional on the amount of principal and interest then owing, as attorney’s fees.
“Each maker, surety and endorser of this note expressly waives all notices, demands for payment, presentations for payment, notices of intention to accelerate the maturity, protest and notice of protest, as to this note and as to each, every and all installments hereof.”

Sometime after July, 1973, the appellants moved to Arizona.

On or about August 20, 1974, The Austin Company purchased the land from Logue. As purchase price The Austin Company paid a sum of cash, executed a second lien note to Louge, and assumed Logue’s note to appellants.

At the time of their purchase of the land from Logue, and for some time afterward, the partners of The Austin Company held the mistaken belief that each installment payment of the note was due on the seventh day of each month, instead of the twenty-seventh day.

Appellants, not having received a note payment by July 27, 1974, consulted an Arizona attorney who on August 15, wrote the following letter to Logue:

“Dear Mr. Logue:
“Mr. & Mrs. C. V. Jones, of Douglas, Arizona, have called to my attention your promissory note dated July 27, 1973, together with Deed of Trust securing the same.
“They pointed out that a payment due under the terms of that note, in the amount of $550.52 has been delinquent since July 27, 1974.
“I have advised them that under the terms of the instrument, they could institute foreclosure proceedings in Texas and seek the full amount of the note, in the total of $71,000.00 together with appropriate interest and 10% of the amount found due additional, as and for attorney’s fees.
“They respectfully request that you make the subject payment and that you make each monthly payment due thereafter in order to forestall any such proceedings.
“We will appreciate your prompt response.”

Though the record is not entirely clear, it appears that it was not until September 13, that Logue called Peter Von Wupperfeld, a partner of The Austin Company, by telephone and told him of the receipt of the letter from the Arizona attorney.

On August 23,1974, The Austin Company mailed its draft for $550.52 to appellants. That draft bore the notation, “for Aug.” The draft was accompanied by a letter to appellants from Von Wupperfeld. In that letter Von Wupperfeld stated that the parcel of land had just been purchased and its recent purchase was the explanation for the first installment payment being “slightly late.” Von Wupperfeld stated further in that letter that appellants could expect the future installment payments to be made “around the seventh or eighth of each month.”

The response of appellants to Von Wup-perfeld’s letter was twofold: one, appellants received and negotiated the draft and, two, they instructed their Arizona attorney to write the following letter to The Austin Company:

“Dear Sir:
“Your letter of August 23, 1974, addressed to Mr. and Mrs. C. V. Jones of Douglas, Arizona, has been handed to me for reply.
“I would like respectfully to suggest that you examine the provisions of that certain promissory note dated July 27, 1973, in the principal amount of $71,-000.00 executed in Austin, Texas by C. L. Logue, Sr.
“That instrument provides that payments in the amount of $550.52 should be made each month, beginning July 27, 1974, and a like amount on the 27th day of each and every month thereafter.
“Your letter of August 23rd indicates you intend making payments on the 7th or 8th of the month. This is not an acceptable procedure. One payment was due on July 27th and was not made at that time. Another payment was due on August 27, 1974. Mr. and Mrs. Jones have not received that payment either.
“Finally, please allow me to call your attention to the fact that the subject note contains a provision which indicates that unpaid principal and the interest which have gone delinquent shall bear interest at the rate of 10% per annum. This means that the payment due on July 27, in the amount of $550.52 and which was not paid on that date, has been accruing interest at the rate of 10% per annum from that date until August 26,1974, the date on which payment was received.
“We will appreciate your response to these matters at your early convenience.”

The Austin Company received the letter from the Arizona attorney on September 3. Von Wupperfeld thereafterward examined the note, learned that the payment date was on the twenty-seventh of each month, and wrote a draft dated September 8 payable to appellants for the second installment. That letter which contained the draft was mailed either on September 8 or 10.

The appellants called Mr. Whittington by telephone on September 10, to employ him to take the necessary steps to collect the note since, in their view, the note was in default.

In the order temporarily enjoining the exercise of the power of sale in the deed of trust, the court found that the exercise of the power of sale would be improper “. because the note it secures has not been effectively or properly matured . . . ” The order was grounded further upon the findings of the court that the appellees would lose their significant equity in the land as well as their present financing to complete the payment therefor, and that the exercise of the power of sale by the appellants would be an unconscionable act from which appellees would suffer immediate and irreparable injury.

Appellants attack the order of the district court by a single point of error claiming that the court erred in holding, as the legal basis for its injunctive order, that appellants had not accelerated payment of the note. The appellees seek to support that order by six counterpoints, based on both legal and equitable reasons.

We will affirm the judgment for the following reason. As previously written, the judgment recited several grounds upon which it was based. On appeal appellants assigned as error only one of those grounds. If the judgment may rest upon more than one ground, the party aggrieved by the judgment must assign error as to each such ground or risk having the judgment affirmed on the ground to which no error was assigned. In such situations it is said that the appellant has waived his right to complain of the ruling to which no error was assigned. Dorbandt v. Jones, 492 S.W.2d 601 (Tex.Civ.App.1973, writ ref’d n. r. e.); LeJeune v. Gulf States Utilities Company, 410 S.W.2d 44 (Tex.Civ.App.1966, writ ref’d n. r. e.). See City of Deer Park v. State, 275 S.W.2d 77, 84 (Tex.1954); McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex.1964); Nesmith v. Hester, 522 S.W.2d 605 (Tex.Civ.App.1975, no writ); Woodrum v. Long, 527 S.W.2d 281 (Tex.Civ.App.1975, no writ).

The judgment is affirmed.

Affirmed.


author: TUNKS, Chief Justice.

text:
    BOSWELL, O’TOOLE, DAVIS & PICKERING, Relator, v. The Honorable Wells STEWART, Judge of the Court of Domestic Relations of Harris County, Respondent.
    No. 1346.
    Court of Civil Appeals of Texas, (14th Dist.).
    Dec. 3, 1975.

      Robert J. Piro, Baker & Botts, Houston, for relator.
    Robert M. Welch, Jr., Fulbright & Jawor-ski, Max Garrett, Garrett & Letbetter, Houston, for respondent.
   TUNKS, Chief Justice.

This is a proceeding on a petition for writ of mandamus in which relator asks that the Honorable Wells Stewart, Judge of the Court of Domestic Relations of Harris County, be ordered to proceed to trial and judgment on relator’s cause of action asserted by petition in intervention in the cause styled In the Matter of the Marriage of Jeanne B. Townsend and John Darius Townsend, Jr.

Relator filed its petition in intervention seeking to recover, from both the parties to the divorce suit, attorney’s fees for services rendered to Mrs. Townsend concerning the divorce. Mr. Townsend filed his motion to dismiss and sever the intervention. Following a hearing on the motion Judge Stewart issued an order in which he found that he had jurisdiction over relator’s claim, but dismissed the intervention “without prejudice to its refiling against Mr. and/or Mrs. Townsend in a separate and independent cause in a regular District Court. . . . ” Relator then brought this action, asking this court to order Judge Stewart to vacate his order and proceed to try, sever, or dismiss the intervention without prejudice to its being filed in any court having jurisdiction.

Under the limited authority granted in Tex.Rev.Civ.Stat.Ann. art. 1824 a court of civil appeals may issue a writ of mandamus only to compel a county or district court judge “to proceed to trial and judgment in a cause.” The question, then, is whether Judge Stewart’s order amounts to a refusal to proceed to trial and judgment.

This court may by mandamus order a trial court to exercise its discretion, but we may not prescribe the manner in which it must exercise that discretion. Jones v. Smith, 470 S.W.2d 305, 307 (Tex.Civ.App.—Houston [1st Dist.] 1971, no writ). We have held that even when a court exercises its discretion by erroneously finding it has no jurisdiction in a matter, that erroneous finding is an exercise of discretion and therefore cannot be cured by mandamus. Williams v. Stewart, 525 S.W.2d 710 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ).

In this case, however, Judge Stewart’s order recites his finding that he does have jurisdiction over relator’s petition in intervention. In such matters the jurisdiction of the Harris County Court of Domestic Relations is concurrent with that of the district courts. Tex.Rev.Civ.Stat.Ann. art. 2338-5, sec. 3 (1971). We are not, therefore, presented with a situation in which a trial court has erroneously taken or refused to take jurisdiction over a cause. Rather, the problem is whether Judge Stewart’s action on relator’s petition was outside the perimeter of his discretionary authority so as to constitute a void order. Citizens State Bank v. Miller, 115 S.W.2d 1183 (Tex.Civ. App.—Waco 1938, no writ); Templeton v. Small, 37 S.W.2d 262, 265 (Tex.Civ.App.—Fort Worth 1931, no writ).

A trial court has a wide, but not unlimited, range of alternatives in exercising discretion over petitions in intervention. Tex.R.Civ.P. 60. He may proceed to trial of the intervention claim; he may sever the intervention; he may order a separate trial; he may strike the intervention for good cause. The use of any of these alternatives, even if it is done so as to constitute an abuse of discretion, is an exercise of discretion and not subject to correction by mandamus. See Matthaei v. Clark, 110 Tex. 114, 216 S.W. 856 (1919). But ordering the parties to take their lawsuit elsewhere is not one of the discretionary alternatives open to the trial court in disposing of a suit in intervention. Such an order amounts to a refusal by the court to proceed in a case in which it has, and has taken, jurisdiction. As such, the order is void and subject to issuance of a writ of mandamus. Jefferson County v. Farris, 476 S.W.2d 457 (Tex.Civ.App.—Beaumont 1972, no writ).

The record reflects that the meaning of Judge Stewart’s order was plainly that relator was to be deprived of the option to prosecute its suit in the court of domestic relations. During the hearing on the motion to dismiss the intervention, the following exchange took place:

MR. NICHOLS [for respondent]: I’m not taking a position that they’re not entitled to have a Jury determination on their attorneys’ fees.
THE COURT: This is the wrong Courthouse for that.
MR. PIRO [for petitioner in intervention]: It is not the wrong Courthouse, Judge.
THE COURT: It is if it depends on what I want to do with this.

By thus refusing to act on the merits of an action over which he had taken jurisdiction, and ordering instead that the suit was to be dismissed from the court of domestic relations and filed only in the district court, Judge Stewart effectively refused to proceed to trial and judgment.

Since we are certain that Judge Stewart will proceed in accordance with the views expressed in this opinion, we think it is not necessary for the writ of mandamus to issue at this time. Relator’s petition for writ of mandamus is therefore granted, but issuance of the writ is temporarily withheld.

Petition granted. Issuance of writ of mandamus temporarily withheld.


author: CURTISS BROWN, Justice.

text:
    Lucy Ullrich WILLIAMS, Appellant, v. Emmett A. SHIELDS, Appellee.
    No. 1276.
    Court of Civil Appeals of Texas, (14th Dist.).
    Dec. 3, 1975.
    William J. Rohrbach, Jr., Philip P. Mabry, Houston, for appellant.
    David Ball, Jr., Houston, for appellee.
   CURTISS BROWN, Justice.

This is a suit to establish paternity and obtain child support.

Lucy Ullrich Williams (appellant) brought suit against Emmett A. Shields (appel-lee) in a court of domestic relations in Harris County to have Shields declared to be the father of her child born out of wedlock, pay her medical and hospital expenses, and contribute to the support of the child. The court below held that it did not have jurisdiction to hear the cause of action, and dismissed the case. Williams has perfected this appeal.

Appellant presents only one point of error, asserting that the trial court erred in holding that it did not have jurisdiction to determine issues regarding the paternity of an illegitimate child.

This case has previously been before us on an application for writ of mandamus. See Williams v. Stewart, 525 S.W.2d 710 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ). Although we held that on the facts before us Tex.Rev.Civ.Stat.Ann. art. 1824 did not give us the power to issue a writ of mandamus, we concluded in dictum that “at least insofar as the petition sought an adjudication of paternity and child support, the case was within the jurisdiction of the Court of Domestic Relations No. 1 of Harris County.” 525 S.W.2d at 711. This conclusion was based on the fact that under Tex.Rev.Civ.Stat.Ann. art. 2338-5, § 3 (1971) and the Texas Family Code the Court of Domestic Relations clearly has jurisdiction to hear cases in which legitimate children seek support; therefore, to hold that that court has no jurisdiction in cases where illegitimate children seek support would be contrary to the decision of the Supreme Court in Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973) and to the Equal Protection Clause of the fourteenth amendment to the United States Constitution.

We adhere to our former view and hold that the Court of Domestic Relations No. 1 of Harris County had jurisdiction to hear this case. The judgment of the trial court is reversed and the cause remanded for a trial on the merits.

Reversed and remanded.


author: McDONALD, Chief Justice.

text:
    Jane TIDWELL and Victor Velicka, Appellants, v. Albert L. LANGE, Appellee.
    No. 5510.
    Court of Civil Appeals of Texas, Waco.
    Dec. 4, 1975.
    Rehearing Denied Jan. 8, 1976.
    Law Offices of Gilbert Prud’Homme, Elvis G. Schulze, Austin, for appellants.
    Vernon M. Pfluger, Stayton, Maloney, Hearne & Babb, William T. Hall, Austin, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiffs Tidwell and Velicka from take-nothing judgment in a suit for specific performance of an option contract to purchase 9.14 acres of land.

Plaintiffs sued defendant Lange alleging Lange leased plaintiffs 9.14 acres by written contract which contained an option to purchase such land for $26,000; that plaintiffs have substantially and fully complied with the terms of the contract and tendered defendant the $2,600. down payment as provided in the contract, but defendant refused to convey the property to plaintiffs. Plaintiffs prayed for specific performance of the contract to convey them the property.

Defendant answered that the contract provided plaintiffs give written notice to defendant 30 days prior to the expiration of the lease of plaintiffs’ intention to purchase the property; that such option to purchase was contingent of plaintiffs not being in default; that plaintiffs were in default in payment of rental and taxes and did not give written notice of intention to purchase within the prescribed time.

Trial was to the court without a jury which rendered judgment plaintiffs take nothing.

Plaintiffs appeal on 2 points contending “The trial court erred in holding by implication that [defendant] had not waived the 30-day written notice requirement of the lease.”

The contract provided defendant lease to plaintiffs 9.14 acres for a period beginning August 7, 1969 and ending August 7, 1974 for a monthly rental of $173. per month. In addition it required plaintiffs to pay for all utilities and taxes on the land before same became delinquent.

Paragraph X “provided that lessee while not in default hereunder and during the final month of this lease term, is hereby given the privilege of purchasing said premises for the sum of $26,000” [$2,600. cash down payment and a note for the balance payable in monthly installments at 8% interest over a 15 year period]. “In event that lessee shall desire to exercise this option of purchase, he shall give written notice to lessor fully 30 days prior to the expiration of this lease agreement.”

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

Findings of Fact
1. All parties are residents of Travis County.
2. On August 7, 1969 plaintiffs and defendant entered a lease contract under which defendant leased to plaintiffs 9.14 acres situated in Travis County.
3. The term of such lease began on August 7,1969 and ended on August 7, 1974.
4. Such lease contract granted plaintiffs an option to purchase the property provided plaintiffs were not in default under the terms of the lease, and during the final month of the lease term, for $26,000 (on terms of payment set out therein).
5. The lease contract provided that if plaintiffs should make default for a period of 10 days the lease would be ipso facto ended and terminated, and all rights of the lessee forfeited.
6. The lease contract further provided “that neither acceptance of rental by lessor, lapse of time or any other act or omission by lessor” should constitute waiver of any breach by lessee.
7. The lease contract further provided that in order to exercise the option to purchase plaintiffs as lessee “must have given defendant written notice of their intention to exercise the option no later than 30 days prior to the expiration of the lease agreement”
8. That plaintiffs as lessee did not give defendant notice of their intention to exercise the option to purchase in accordance with the terms of the lease.
9. That at the time plaintiffs gave defendant notice of their intention to exercise the option to purchase, plaintiffs were 2 months in default of payment of the monthly lease rental payments.
10. That on July 7, 1974 plaintiffs were unable to exercise, and failed to exercise, the option to purchase in accordance with the terms of the lease contract.
Conclusions of Law
1. Plaintiffs failed to comply with the terms of the lease contract, in defaulting in the payment of the monthly lease rental payments.
2. Notice given by plaintiffs to defendant on or about August 7, 1974 of plaintiffs’ intention to exercise the option to purchase did not comply with the terms of the lease contract, and did not extend or revive any right in plaintiffs to purchase the property.
3. The lease contract terminated, and all rights of lessee lapsed and were forfeited no later than August 7, 1974.
4. All improvements on the premises on August 7, 1974 became property of defendant.

Plaintiffs admitted the rentals were not paid up on July 7, 1974; that two months rental was due on such date; that plaintiffs paid up the delinquent rentals on August 5, 1974, which was for the June and July 1974 rents; that taxes were past due on the property on July 7, 1974, which taxes were paid up by plaintiffs on August 7, 1974; that plaintiffs first gave written notice of desire to purchase the land on August 7, 1974.

Plaintiffs cite Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265, assert that because defendant accepted the rent late, because plaintiffs orally told defendant in June 1974 they intended to exercise the option to purchase, that because plaintiffs thought the lease did not terminate until September 7, 1974, and because plaintiffs have placed valuable improvements on the property, that equity should not allow defendant to cut off plaintiffs’ valuable option to purchase.

Plaintiffs filed no objections to the findings of the trial court and did not request any additional findings. The evidence is disputed that plaintiffs orally told defendant they intended to exercise the option.

If plaintiffs desired additional findings it was incumbent upon them to request same as provided for by Rule 298 TRCP. Not having done so the matter was waived. Nelson v. Flache, CCA (Amarillo) NRE, 487 S.W.2d 843; Lutz v. Lutz, CCA (1st Houston) NWH, 508 S.W.2d 955; Vanity Fair Properties v. Billingsley, CCA (San Antonio) NRE, 469 S.W.2d 453; Caldwell v. Caldwell, CCA (Waco) NWH, 423 S.W.2d 140.

And omitted unrequested findings will be presumed in support of the judgment. Rule 299 TRCP.

In the absence of equities an op-tionee is held to a strict compliance with the terms of the option agreement. The lease here granted the option to plaintiffs. They did not exercise it within the time prescribed, and could not have as rentals and taxes were unpaid on the property until August 5, and 7, 1974. There are no findings of fact which make it inequitable as to plaintiffs to require a strict compliance with the notice provision. Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265; Zeidman v. Davis, 161 Tex. 496, 342 S.W.2d 555.

Plaintiffs’ points and contentions are overruled.

Affirmed.


author: YOUNG, Justice.

text:
    Mason R. DIXON et ux., Appellants, v. Donna SHIRLEY, Individually and d/b/a Donna Shirley Realty, Inc., et al., Appellees.
    No. 1013.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 9, 1975.
    Rehearing Denied Dec. 31, 1975.

      Richard J. Hatch, Mahoney, Shaffer, Hatch & Layton, Corpus Christi, for appellants.
    John A. Waller, Lev Hunt, Kleberg, Mob-ley, Lockett & Weil, Corpus Christi, Stonewall Van Wie, III, Corpus Christi, for appel-lees.
   OPINION

YOUNG, Justice.

Mason R. Dixon and his wife Mildred J. Dixon filed suit against Donna Shirley, individually and d/b/a Donna Shirley Realty Company, Glenn L. Morgan, Willard A. Cobb and his wife Hurene Cobb, and U. S. Life Title Company for misrepresentations and negligence of the several defendants in the sale of realty. A motion for summary judgment was filed by Shirley, both Cobbs, and the title company, but not by Morgan. Nor was there an order of severance entered regarding Morgan. The trial court entered summary judgment, however, for each and all of the defendants.

Glenn L. Morgan is a real estate agent for the defendant Donna Shirley Realty Company. These two defendants were represented by one counsel. A motion for summary judgment was filed on behalf of Donna Shirley, individually and d/b/a Donna Shirley Realty Company, but Morgan was not named therein, nor was a separate motion for summary judgment filed on behalf of Morgan.

Summary judgment may not be rendered on behalf of a party that has not filed a motion for summary judgment. Thedford v. County of Jackson, 502 S.W.2d 899 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n.r.e.); Danner v. McMahan, 490 S.W.2d 213 (Tex.Civ.App.—Amarillo 1973, writ ref’d n.r.e.); Gregory v. Texas National Guard Armory Board, 490 S.W.2d 608 (Tex.Civ.App.—Eastland 1973, writ ref’d n.r.e.). When a summary judgment does not dispose of all the parties and a severance is not ordered, the judgment is interlocutory and not appealable. Steeple Oil and Gas Corporation v. Amend, 394 S.W.2d 789 (Tex.Sup.1965); Westbrook v. City of Edna, 501 S.W.2d 437 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n.r.e.); Gregory v. Texas National Guard Armory Board, supra.

Appellees contend that although Morgan did not actually file a motion for summary judgment, the evidence that would entitle him to summary judgment is identical to that evidence offered by Donna Shirley. Dixon failed to point out to the court that a summary judgment motion had not been filed by Morgan and also failed to object to the entry of a summary judgment for Morgan. The appellees argue that the matter, therefore, has been tried by consent. It is further urged that the rendition of summary judgment for Morgan at the most constitutes harmless error and to disturb the judgment now would be an exercise in futility.

We cannot agree. The summary judgment as to Morgan is of no effect. The judgment therefore fails to dispose of all of the parties and is interlocutory and not appealable.

Appeal dismissed.


author: PHILLIPS, Chief Justice. SHANNON, Justice

text:
    MAIN BANK OF HOUSTON, Appellant, v. DAVY CROCKETT INN OF NEW BRAUNFELS, INC., Appellee.
    No. 12335.
    Court of Civil Appeals of Texas, Austin.
    Dec. 10, 1975.

      Melvin R. Wilcox, III, Baer, Cryan, Keen, Tubb & Wilcox, Houston, for appellant.
    Edward Woolery-Price, Dibrell, Dotson & Dibrell, San Antonio, for appellee.
   PHILLIPS, Chief Justice.

This is a venue case. Appellee Davy Crockett Inn of New Braunfels, Inc., brought suit in Comal County against the First National Bank of New Braunfels and the Main Bank of Houston, contending that a $26,000 cashier’s check the Inn had purchased from the New Braunfels bank had been negligently paid by that bank without the endorsement of the payees, thereby causing the Inn to lose the funds.

The Main Bank of Houston filed a plea of privilege to be sued in Harris County, Texas. The Inn opposed the plea of privilege, relying upon subdivisions 4, 5, and 9a of Tex.Rev.Civ.Stat.Ann. art. 1995. After a hearing, the trial court overruled the plea of privilege and the Main Bank brought this appeal.

We reverse the judgment and remand the cause with instructions.

The controversy from which this suit arose began in 1970, when the appellee Inn was seeking investors. Appellee purchased the cashier’s check in question, naming as joint payees “Investments Universal, Inc., Escrow, and Tay Bond.” Tay Bond, appel-lee’s agent, was to endorse the check only after appellee secured a funding commitment from Investments Universal, Inc. Although the funding commitment was never made, the check, bearing no endorsement, came into the possession of the Main Bank of Houston, which forwarded it to the New Braunfels bank for payment. The New Braunfels bank returned the check to the Main Bank with the notation “payees endorsement missing.” Main Bank then stamped the cheek “credited to account of within named payee, absence of endorsement guaranteed,” and again sent the check to New Braunfels, where it was paid.

Later appellee brought suit, sounding in negligence, against both banks, and this appeal resulted.

Appellant is before us on three points of error which we sustain, contending that there is no evidence to support the holding of the trial court that venue can be maintained in Comal County under either subdivisions 4, 5 or 9a of Tex.Rev.Civ.Stat.Ann. art. 1995.

In order to come under the exception of subdivision 4 of Tex.Rev.Civ.Stat. Ann. art. 1995 where-two or more defendants reside in different counties, appellee must prove at the venue hearing that: (1) at least one defendant resides in the county of suit, (2) the party asserting his plea of privilege is at least a proper party to the claim against the resident defendant, and (3) appellee has a bona fide claim against the resident defendant.

Appellee cannot rely on subdivision 4 of Article 1995 because it has failed to prove a bona fide cause of action in negligence against the bank located in New Braunfels. Although appellee alleges in its petition that this appellant was somehow negligent, it failed to make proof of a prima facie case of negligence at the hearing on the plea. Houston Sash & Door Company, Inc. v. Davidson, 509 S.W.2d 690 (Tex.Civ.App.1974, writ ref’d n.r.e.). Appellee’s pleading, standing alone, does not establish negligence. Locke v. Brenneman, 459 S.W.2d 871 (Tex.Civ.App.1970, no writ).

The First National Bank of New Braunfels was fully within its rights in cashing the check upon receiving it from appellant with a guaranteed endorsement stamped thereon. Tex.Bus. & Comm.Code Ann. § 4.205 (1968) provides: “(a) A depositary bank which has taken an item for collection may supply any indorsement of the customer which is necessary to title unless the item contains the words ‘payee’s indorsement required’ or the like. In the absence of such a requirement a statement placed on the item by the depositary bank to the effect that the item was deposited by a customer or credited to his account is effective as the customer’s indorsement.” (Emphasis added).

We also overrule appellee’s contention that subdivision 5 of Article 1995 is applicable here. Subdivision 5 is as follows: “Contract in writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.” Appellee contends that because under subdivision 5 venue is proper in Comal County by proof of a contract with the New Braunfels bank, venue also lies in Comal County by subdivision 4 for a negligence claim against the Main Bank of Houston, a resident of Harris County.

Under the facts of this case, ap-pellee cannot rely on such an interplay between subdivisions 4 and 5 to establish venue in Comal County for Main Bank of Houston. In order to establish venue under subdivision 5 against a non-resident defendant, the action against the non-resident defendant and the resident defendant must be joint and several, and must be an action of the same nature against both defendants. Appellee cannot defeat the right of Main Bank to be sued in the county of its residence by bringing suit in contract against the First National Bank of New Braunfels, and joining Main Bank under allegations of negligence. Citizens’ National Bank of Abilene v. Overstreet, 46 S.W.2d 409 (Tex.Civ.App.1931, writ ref’d); Dillon v. Binyon-O’Keefe Fireproof Storage Co., 119 S.W.2d 416 (Tex.Civ.App.1938, no writ); Fox v. Cone, 118 Tex. 212, 13 S.W.2d 65, 66-67 (Tex.Com.App.1929, opinion adopted); 1 McDonald, Texas Civil Practice, § 4.10.2 (1965 Rev.).

Finally, we hold that venue in Co-mal County was not established for the Main Bank of Houston under subdivision 9a. That subdivision states that a suit for negligence may be brought in the county where the act or omission of negligence occurred. Appellee has introduced no evidence of any negligent act or omission by the Main Bank of Houston occurring in Comal County. It is clear that venue lies under subdivision 9a in the county where the negligent act or omission, not the harm, occurs. Leonard v. Abbott, 366 S.W.2d 925 (Tex.1963).

The judgment of the trial court is reversed, and the cause is remanded to the trial court with instructions to enter an order transferring the action against Main Bank of Houston to district court in Harris County.

Reversed and remanded with instructions.

SHANNON, Justice

(concurring).

Venue may not be sustained in Comal County under subdivision 5(a), Tex.Rev.Civ. Stat.Ann. art. 1995, for the following reason.

Subdivision 5(a) provides as follows:

“5. Contract in writing. — (a) Subject to the provisions of Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

The venue facts under subdivision 5(a) are: (1) that the defendant is a party reached by the statute; (2) that the claim is based on a written contract; (3) that the contract was entered into by the defendant or by one authorized to bind him, or was assumed or ratified by him; and (4) that the contract by its terms provides for performance of the obligation sued on in the county of suit. 1 McDonald, Texas Civil Practice, § 4.11.1 (1965 Rev.).

Appellee did not incorporate its trial petition, or any of the allegations of the petition, in its controverting plea. Instead, ap-pellee set out the following paragraph in its controverting plea in an effort to show that the case came within subdivision 5(a):

“Davy Crockett Inn of New Braunfels, Inc., Plaintiff herein, would also respectfully show this Court that the transaction out of which this cause of action arose was to be performed in New Braunfels, Comal County, Texas, at the place of business of the Defendant, First National Bank of New Braunfels, Texas, thereby placing venue in the said Comal County under Exception 5, Article 1995 of the Civil Statutes of the State of Texas.”

Texas R.Civ.P. 86 requires that the controverting plea set out specifically the grounds relied upon to confer venue of the case in the court where the case is pending. The controverting plea constitutes the pleading of the plaintiff on the issue of venue, and that plea must allege all the facts that are necessary to be proved to sustain the venue in the court where the suit was filed. A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619 (1939). As may be seen, appellee in its controverting plea did not allege facts showing that Main Bank of Houston, in any capacity, contracted in writing to perform any obligation in Comal County.


author: TUNES, Chief Justice.

text:
    Edward C. McWILLIAMS, Appellant, v. Ollie R. McWILLIAMS, Appellee.
    No. 1280.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Dec. 10, 1975.

      Sam Dawkins, Jr., Eastham & Meyer, Houston, for appellant.
    Charles H. Waters, Jr., Liddell, Sapp, Ziv-ley & Brown, Houston, for appellee.
   TUNES, Chief Justice.

This appeal arose out of a suit brought by appellant Edward C. McWilliams against his former wife, appellee Ollie R. McWil-liams, to recover the amount of payments made by appellant on encumbrances on a farm awarded to appellee in their divorce. The parties were divorced by a decree announced on September 30, 1970 and signed by the trial judge on November 28, 1970. Mr. McWilliams appealed the divorce decree and posted a supersedeas bond. The decree was affirmed by the court of civil appeals, writ of error to the supreme court was denied, and motion for rehearing on the application for the writ of error was denied on September 13, 1971.

As part of the judgment for divorce, Mrs. McWilliams was awarded a farm in Fort Bend County “subject to all indebtedness and encumbrances against the said property for which the Petitioner (Mrs. McWilliams) shall hold the Respondent harmless for any and all liability and expenses incurred on account of the said indebtedness.” During the pendency of his appeal from the divorce decree, appellant retained possession of the farm and made mortgage payments on November 23, 1970 and June 11, 1971 in amounts totaling $14,941.73. He alleges that during the time he retained possession of the farm, he accounted to appellee for all related income and expenses and derived no benefit from his use or occupancy of the property.

After writ of error was denied by the supreme court, appellant surrendered the farm to appellee and brought this action against her to recover the amount of the mortgage payments he made between the date the divorce decree was announced and the date it became final, in the sense that it was not further appealable, by virtue of denial of writ of error. Appellee did not controvert appellant’s assertions that he made the payments, or the amount of the payments, or that he had accounted to ap-pellee for all income from the property. Her answer set out defenses of res judicata, statute of limitations, and an allegation that since the divorce judgment had not become final until writ of error was denied, appellant was not entitled to reimbursement for mortgage payments he made prior to that date. The district court granted summary judgment for appellee on the basis of this latter defense, for the reason that “[sjaid decree, therefore, did not vest title in the real property described therein, in Ollie R. McWilliams, nor did it exonerate Edward C. McWilliams from liability for payments on said real property, until September 31,1971.” Appellant asserts on this appeal that the trial court erred as a matter of law in finding the divorce decree was effective only as of the date writ of error was denied.

The term “final judgment” applies differently in different contexts. A judgment is “final” for purposes of appellate jurisdiction if it disposes of all issues and parties in a case. North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.Sup.1966). The term “final judgment” is also used with reference to the time when trial or appellate court power to alter the judgment ends, or when the judgment becomes operative for the purposes of res judicata. See 4 McDonald, Texas Civil Practice, Judgments § 17.03.4 (1971).

“Final judgment” also applies when a judgment operates to finally vest rights as between the parties. In that context a decree appealed from by supersedeas, as was done in this case, does not become final or effective until the case is disposed of on appeal. Bagby v. Bagby, 186 S.W.2d 702, 708 (Tex.Civ.App.—Amarillo 1945, no writ); Williams v. Williams, 60 Tex.Civ.App.179, 125 S.W. 937, 940 (1910, error dism.). Thus, the McWilliamses could not exercise the rights granted them by the divorce decree during the pendency of the appeal: in that sense, the decree took effect when the appeal was exhausted.

This does not mean, however, that the trial court’s judgment, having been finally affirmed on appeal, was effective only from the date of affirmance. The effect of the appeal and supersedeas were to prevent execution of the trial court judgment pending disposal of the appeal. Davis v. State, 96 Tex.Cr.R. 367, 257 S.W. 1099, 1100 (1924). The effect of affirmance was to implement the rights of the parties as they were determined by the trial court at the time its judgment was rendered.

There can be no doubt that a person who has obtained a judgment afterwards affirmed on appeal is entitled to all the benefits that would have resulted from it had there been no appeal, for the affirmance gives effect to the original judgment .

Texas Trunk R. R. v. Jackson, 85 Tex. 605, 22 S.W. 1030, 1031 (1898). Although the parties were prevented from exercising the rights they had obtained in the trial court judgment until it was ultimately affirmed, affirmance of that judgment neither altered those rights nor affected their application from the time they were determined. Beyer v. Templeton, 147 Tex. 94, 212 S.W.2d 134, 139 (1948); Yale v. Heard, 26 Tex. 639, 640-41 (1863).

The record reflects that an issue was raised concerning the actual date of rendition of the trial court’s judgment of divorce. In addition, determination of the liabilities of both parties which arose during the pendency of appeal may also involve fact issues. For these reasons, as well as the trial court’s error in determining the effective date of the divorce decree, the summary judgment is reversed, and the cause is remanded for trial.

Reversed and remanded.


author: COULSON, Justice.

text:
    Josephine L. BERRY, Appellant, v. Reverend Leslie T. GRIFFIN, Appellee.
    No. 1282.
    Court of Civil Appeals of Texas, (14th Dist.).
    Dec. 10, 1975.
    Rehearing Denied Jan. 14, 1976.

      B. Edward Williamson, Prappas, Caldwell & Moncure, Houston, for appellant.
    Allen B. Daniels, F. W. Moore, Houston, Herman L. Little, Jr., Asst. Atty. Gen., Austin, Charles S. Taylor, Jr., Houston, Cullen Smith, Ñaman, Howell, Smith & Chase, Waco, for appellee.
   COULSON, Justice.

This is a “Lost Will” case. In 1969 Miss Josephine Allebach executed a will. After her death, on May 24, 1974, the original of the Will could not be found. The principal beneficiary under the Will, Reverend Leslie T. Griffin, sought probate of an unsigned copy of the Will. Josephine L. Berry, and others, contested the probate of the “Lost Will” on the ground that the decedent revoked her will prior to her death by destroying the Will. After a jury trial the court admitted the “Lost Will” to probate. We reverse and render.

The jury found: (1) that when last seen the Will was not in the possession of the deceased or in a place where she had ready access to it, (2) that the original Will was not found after Josephine Allebaeh’s death, and (3) that the deceased did not revoke the Will.

Where a validly executed will was last seen or accounted for in the possession of the decedent, or in a place where the decedent had ready access to it, and it cannot be found after the deceased’s death, the presumption arises that the testatrix destroyed it with the intention of revoking it. Mingo v. Mingo, 507 S.W.2d 310 (Tex.Civ.App.-San Antonio 1974, writ ref’d n. r. e.). In the case before this court the presumption arises because there is no dispute that the Will of Josephine Allebach was validly executed and could not be found after her death. Two witnesses testified that the Will was last seen in the testatrix’ possession. The proponent of the Will claims that there was testimony upon which the jury could rely to rebut the “possession testimony”, and that the presumption of revocation did not arise. T. R. Allebach, acting under a power of attorney, entered Josephine Allebach’s safe deposit box, per her directions, and delivered its contents to her at her home. He found in the safe deposit box an envelope with the word “Will” marked on it. After delivering it to Josephine Alle-bach, she took it out of the envelope and said, “This is my will.” T. R. Allebach also testified that the deceased showed him the Will at her home one month before her death.

Paul Bryant corroborated T. R. Allebach’s testimony. Bryant went with T. R. Alle-bach to the bank and aided him in emptying Josephine Allebach’s safe deposit box and delivering its contents to her at her home. Bryant also saw the envelope marked “Will” and testified that Josephine Allebach took the envelope and said that it was her will.

The proponent relies on the testimony of Irene Werlla that the Will was never in the house. Werlla, and her husband, lived in the house with Josephine Allebach and served as her caretaker and companion. Werlla testified that Josephine Allebach told her that the Will was in her safe deposit box. Other witnesses called by the proponent testified as to Josephine Allebach’s good and sound mental state before her death. There was also testimony that the deceased had not discussed revoking her will and still felt amicable toward the principal beneficiary of her will.

The rule is well settled that an inference may be drawn from a fact proved, but an inference may not be drawn from an inference. Texas & N. O. R. Co. v. Burden, 203 S.W.2d 522 (Tex.Sup.1947). Werlla’s testimony, if accepted, establishes only that she never saw the Will in the house. It may be inferred from this that the Will was not in the house, but from that inference it may not be inferred that the Will was never in Josephine Allebach’s possession or in a place where she had ready access to it.

Werlla’s testimony was not evidence that the jury could rely on in finding that the Will was not in Josephine Allebach’s possession or in a place where she had ready access to it. Only T. R. Allebach and Paul Bryant gave testimony that could be considered on the “possession” question. Both testified that they delivered an envelope marked “Will” to Josephine Allebach, that she took possession of it, and she declared it to be her will. Where there is no evidence to the contrary, the jury may not disregard the undisputed evidence and decide such issue in accordance with their wishes. Texas & N. O. R. Co. v. Burden, supra. The testimony of T. R. Allebach and Paul Bryant, coupled with the fact that the Will was not found after Josephine Allebach’s death, resulted in the presumption of revocation as a matter of law.

Assuming arguendo that the jury could properly disregard the testimony of T. R. Allebach and Paul Bryant that they took the Will to the deceased from her safe deposit box because what they actually delivered to the deceased was a mere copy of the Will, the presumption of revocation must still arise. The presumption, if not established by the testimony of delivery to the deceased of the Will from her safe deposit box, is then established by Paul Bryant’s uncontroverted testimony that in earlier years Josephine Allebach would leave the Will in his possession when she would take a trip and that he always delivered it to her upon her return. Ignoring the safe deposit box delivery testimony as evidence of when the Will was last seen, then the only other time the Will was last seen was when Paul Bryant returned the Will to Josephine Allebach after her last vacation. In that case, the Will was last seen in the possession of the deceased and not having been found after her death, the presumption of revocation arose as a matter of law.

To overcome the presumption of revocation, evidence of a clear and convincing nature must be produced that the will was not revoked. Bailey v. Bailey, 171 S.W.2d 162 (Tex.Civ.App.-Amarillo 1943, no writ); Dodd v. Peoples National Bank, 377 S.W.2d 760 (Tex.Civ.App.-Texarkana 1964, no writ); Harris v. Robbins, 302 S.W.2d 225 (Tex.Civ.App.-Amarillo 1957, no writ). This standard requires that the evidence should not be ambiguous, equivocal, or contradictory and that it be sufficient to carry conviction to an unbiased and unprejudiced mind. 1 C. McCormick & R. Ray, Texas Practice § 49 (2d ed.1956).

Continued affection for the principal beneficiary of a will is of no material significance in rebutting the presumption that the will was revoked. Bailey v. Bailey, supra at 166. The proponent’s witnesses’ testimony that Josephine Allebach felt kindly toward Reverend Griffin is insufficient to rebut the presumption of revocation.

Furthermore, there is no evidence from which the jury could have found that the Will was fraudulently destroyed by another. Although T. R. Allebach had access to Josephine Allebach’s papers and had at one time after her death mistakenly stated that he had the Will (when indeed he had only a copy), any finding of destruction would be pure speculation and surmise. It is undisputed that T. R. Allebach had no interest in the estate under the Will or as an heir. A mere surmise of destruction is insufficient to rebut the presumption of revocation. Citizens First National Bank of Tyler v. Rushing, 433 S.W.2d 741 (Tex.Civ.App.-Tyler 1968, no writ); Davis v. Roach, 138 S.W.2d 268 (Tex.Civ.App.-Austin 1940, writ dism’d jdgmt. cor.).

Werlla’s testimony that she never saw the Will in Josephine Allebach’s house is likewise insufficient to rebut the presumption of revocation. See Mingo v. Mingo, 507 S.W.2d 310 (Tex.Civ.App.-San Antonio 1974, writ ref’d n. r. e.). In short, there was no evidence introduced to rebut the presumption that Josephine Allebach destroyed her will with the intention to revoke it. Even if we were to apply a lesser standard of evidence, that to rebut the presumption of revocation the proponent of the “Lost Will” need only come forward with some evidence that the deceased did not destroy her will with the intent to revoke it, we would still find the proponent’s evidence legally insufficient because the testimony of continued affection is immaterial, the evidence of destruction must be more than mere surmise, and Irene Werlla’s testimony can raise no more than an inference that the Will was not in the deceased’s house.

A lost will may present perplexing problems for beneficiaries, heirs and the court. The legislature has provided a method of avoiding the problems attendant when a will becomes lost. The Probate Code provides for a deposit of a will with the county clerk for a nominal .sum. Few people make use of this privilege. See Tex.Prob.Code Ann. § 71 (1956).

The judgment of the trial court is reversed and it is rendered that the application for probate of the Will is denied.


author: PRESLAR, Chief Justice.

text:
    Flora R. GARCIA, an Individual, Appellant, v. Lester Paul WILLMUTH, Individually and as Next Friend of Sherry Jane Willmuth, a minor, Appellees.
    No. 6450.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 10, 1975.

      Scott, Hulse, Marshall & Feuille, Richard Munzinger, James L. Gallagher, James T. McNutt, Jr., El Paso, for appellant.
    Pearson, Speer, Oden, Hardie & Caballero, Ray Pearson, Barney Oden, El Paso, for appellees.
   OPINION

PRESLAR, Chief Justice.

This suit is for damages for personal injuries to a minor pedestrian struck by a motorist in a marked crosswalk. Trial to a jury resulted in a verdict and judgment for the minor pedestrian. Error in the failure to submit requested issues of the defendant motorist requires reversal and remand for another trial.

In addition to the failure to submit certain issues, there is also present on appeal the question of proper submission of the defendant motorist’s negligence under Paragraph (b) of Sec. 77, Article 6701d, Tex.Rev.Civ.Stat.Ann.

The plaintiff-Appellee was struck by the defendant-Appellant’s car as she and two companions crossed Trowbridge Street in El Paso when plaintiff stepped from in front of another car into the path of defendant’s car.

The jury, in response to special issues, found the defendant negligent in failing to keep a proper lookout and failing to yield the right-of-way. The trial Court refused to submit defendant’s requested Special Issues Nos. B, C and D inquiring whether plaintiff attempted to cross the traffic lane occupied by defendant’s vehicle at a time when she could not do so with safety, whether such action was negligence and a proximate cause; an appropriate definition of negligence as it applies to a minor child was submitted with these issues. Also refused were defendant’s requested Issues Nos. E, F, G and H inquiring whether plaintiff suddenly left the curb or other place of safety and walked or ran into the path of defendant’s vehicle at a time when defendant’s vehicle was so close that it was impossible for defendant to yield, whether such action was negligence and a proximate cause of the accident.

The requested issues are supported by proper pleadings and there is no argument as to the sufficiency of the evidence to require their submission. Rules 277 and 279, Tex.R.Civ.P., require the court to submit the controlling issues and the cases are legion upholding that right of a party. A defendant is entitled to an issue on each act of contributory negligence supported by proper pleadings and evidence. Kainer v. Walker, 377 S.W.2d 613 (Tex.1964).

In addition to the broad but controlling rules above alluded to, the question of the submission of these particular issues is controlled by the case of Stalder v. Bowen, 373 S.W.2d 824 (Tex.Civ.App.—Dallas 1963, writ ref’d n. r. e.). There, almost identical issues were held to be properly submitted. In that case, the plaintiff was struck when she stepped from in front of a bus into the path of defendant’s truck. As regarded the plaintiff Mrs. Stalder’s actions immediately prior to the incident, the court held that her movements clearly gave rise to both statutory and common law issues for the defendant. As to the common law defenses in our case, it should be noted that the Court did submit an issue on the plaintiff’s keeping a proper lookout. That did not suffice, for the issue of proper lookout does not include the issue of placing oneself in an unprotected position. Broesche v. Bullock, 427 S.W.2d 89 (Tex.Civ.App.—Houston (14th Dist.) 1968, writ ref’d n. r. e.); Stalder v. Bowen, supra.

Defendant’s requested Issues E, F, G and H can be termed statutory defenses under Sec. 77(a), Art. 6701d, Tex.Rev.Civ.Stat. Ann. Appellee urges that these are merely excuses or attempted excuses for violations of Sec. 77. Section 77, entitled “Pedestrians’ right-of-way in crosswalks” reads as follows:

“Sec. 77. (a) When traffic-control signals are not in place or not in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger, but no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield. This provision shall not apply under the conditions stated in Section 78(b).
“(b) Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.”

This is a portion of the Texas version of the Uniform Act Regulating Traffic on Highways, and one who violates a provision of the Act commits a misdemeanor. Art. 6701d, Sec. 22.

Issues on the actions of a pedestrian suddenly leaving a place of safety and walking or running into the path of a vehicle when it is so close that the driver cannot yield, are not excuses for the conduct of the driver; clearly, they relate to acts of the pedestrian — acts which alone could be the cause of an accident and constitute negligence or contributory negligence. In Stalder v. Bowen, supra, it was held that an issue inquiring whether the plaintiff suddenly left a place of safety was “an inappropriate ultimate issue.” The Court said that but for such act, the accident would not have occurred. In Dabol v. United States, the Ninth Circuit Court.'of Appeals, construing a like provision, held that a pedestrian violating such provision could be guilty of contributory negligence as a matter of law, or found guilty thereof as a matter of fact on conflicting evidence. The Court said that this was the majority view. (337 F.2d 163, 1964). It follows, from what has been said, that we are of the opinion the Court erred in the case before us in not submitting the defendant’s requested issues. For such errors, the case must be reversed and remanded for another trial.

In view of another trial, it is necessary to consider the Court’s submission of the defendant’s violation of Paragraph 77(b), supra. In this connection, by Issue No. 3 the jury was asked if the failure of the defendant to yield the right-of-way was negligence. Issue No. 4 asked if such negligence was a proximate cause. Between Issue 3 and 4 of the charge was an instruction in the words of 77(b):

“In connection with this issue and issue No. 4 below, you are instructed that whenever any vehicle is stopped at a marked crosswalk at an intersection to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.”

Thus Issue No. 3 assumed that the defendant failed to yield the right-of-way given to the pedestrian by Paragraph (b) of Sec. 77. If such were the facts, then the defendant was in violation of Paragraph (b) as a matter of law; that was negligence per se and there was no need for Issue 3 or the instruction; it was a matter of law for the Court. Farias v. Gaitan, 312 S.W.2d 273 (Tex.Civ.App.—San Antonio 1958, writ ref’d n. r. e.), is a case very much in point on that.

It cannot be said as a matter of law that the factual situation described by Paragraph (b), Sec. 77, existed here. There is evidence from which a jury could have found this set of facts not to exist in its entirety. Plaintiff, in urging the violation of this penal statute, had the burden to prove the elements of the violation.

James Riley was in the lane nearest the curb; the children approached, and he stopped his car at the crosswalk. Plaintiff crossed in front of Riley’s car and was struck by the defendant’s car as it passed the Riley car. The defendant said at one point that the Riley car was stopped and at another point that it was not. The same is true of the testimony of Riley, who said when he was asked if he was at a stop when the girls came off the curb: “I’m not sure. It was about the time — about the time I stopped they were moving so it’s hard for me to really say.”

“Q. It was at the time you were stopping or you were stopped, is that a fair statement?”
“A. Yes, sir.”

Asked at another point if he knew whether he was stopped when the girls entered into the roadway, Riley answered:

“I think that they entered — it’s possible they entered the crosswalk before my car was completely at a stop.
“Q. To the best of your recollection you were probably moving when those girls moved into the crosswalk?
“A. It was almost simultaneous. My car came to a stop and they scampered across.”

Riley also testified that the defendant’s car was to his left and behind him about one car length as they were both moving down the street toward the crosswalk. Riley’s wife, who was a passenger in the front seat of his car, testified that the defendant’s car did not pass theirs, that it came to a stop almost evenly with theirs, or that it just barely passed them “two or three feet.”

If, on another trial, this evidence is the same or similar, an issue or issues to fit plaintiff’s burden of proving violation of the penal statute would be appropriate. For example, in Stalder v. Bowen, supra, issues were submitted to determine whether the bus was stopped at an unmarked crosswalk and whether the bus was stopped to permit the pedestrian to cross the roadway.

The judgment of the trial Court is reversed, and the cause remanded for another trial.


author: MOORE, Justice.

text:
    AMERICAN MOTORISTS INSURANCE COMPANY, Appellant, v. Vida Ree BOX et al., Appellees.
    No. 889.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 11, 1975.
    Rehearing Denied Jan. 8, 1976.
    See also Tex.Civ.App., 531 S.W.2d 407.

      Kenzy D. Hallmark, Zeleskey, Cornelius, Rogers, Berry & Hallmark, Lufkin, for appellant.
    William A. Badders, Badders & Keeling, Nacogdoches, for appellees.
   MOORE, Justice.

This is an appeal by an insurance company from a judgment maturing the award of the Industrial Accident Board and awarding the insureds certain workmen’s compensation benefits, together with a 12% attorney’s fees. Appellee, Vida Ree Box, et al., brought suit against appellant, American Motorists Insurance Company, under the provisions of Article 8307, Vernon’s Ann. Texas Statutes, to mature an award of the Industrial Accident Board by which she and her daughter were awarded certain workmen’s compensation benefits as a result of the death of her husband, Edward Curtis Box. She alleged that since neither party appealed from the award, the award became final and binding and the insurance company had failed and refused to pay the award. Her prayer was for judgment for the amount of the award, together with a 12% penalty and reasonable attorney’s fees. After the insurance company had answered, appellees filed a motion for partial summary judgment covering all issues except attorney fees. After a hearing, the trial court awarded appellee a partial summary judgment finding that appellees were entitled to judgment maturing the Board’s award. Thereafter, the issue of the amount of a reasonable attorney’s fees was submitted to a jury and the jury returned a verdict of $3,750.00. The trial court rendered judgment in favor of appellees for the amount of benefits awarded by the Industrial Accident Board, together with a 12% penalty and attorney’s fees in the amount of $3,750.00. After its motion for new trial had been overruled, appellant perfected this appeal.

Before discussing appellant’s points of error, we will undertake to state, in chronological order, the history of this litigation. The record reveals that appellee’s husband, Edward Curtis Box, suffered an electrical shock while in the course and scope of his employment with International Paper Company. While hospitalized as a result of the shock, he suffered a heart attack and died. As a result a claim was filed with the Industrial Accident Board and on April 10, 1974, the Board made and entered its final ruling, decision and award, awarding appel-lees certain compensation benefits. Thereafter, the insurance company filed written notice of its intent to appeal from the Board’s award. On May 28, 1974, some 13 days beyond the 20-day limit for filing suit, the insurance company filed suit in the District Court of Nacogdoches County, in Cause No. 15603-74-5 seeking to set aside the award of the Board. Although filed some thirteen days late, the petition alleged no excuse for the late filing. Appellees answered the suit with a sworn plea alleging the court was without jurisdiction in that the suit was not timely filed. Appel-lees also asserted a cross action to mature the award of the Board alleging that since the insurance company failed to timely file suit, the award became final and appellees were entitled to the compensation benefits awarded by the Board.

While the cause was pending on the docket, appellees filed a separate suit in the District Court of Nacogdoches County under Cause No. 15603-74-6 seeking to mature the award of the Industrial Accident Board. Appellees alleged that since the insurance company failed to file suit within 20 days as required by the statute the award became final and as a result they were entitled to judgment for the amount of the award together with 12% penalty and a reasonable attorney’s fee. The insurance company answered this suit with a general denial. Appellees then filed a motion for partial summary judgment in their suit to mature the award. On January 10, 1974, the insurance company filed a motion to consolidate Cause No. 15603-74-5 and Cause No. 15603-74-6, alleging that “both cases contain identical issues of law and fact” and should be consolidated to avoid a multiplicity of suits. While the motion to consolidate was pending, the insurance company filed an amended answer in appellees’ suit to mature the award (Cause No. 15603-74-6) demanding a jury trial on all issues of fact and alleging that if it be found that the insurance company did not timely file its petition in Cause No. 15603-74-5, wherein it sought to vacate the Board’s award, that the failure was the result of accident or mistake unaccompanied with any negligence on the part of the insurance company or its attorneys. Appellant alleged in its amended answer that the petition it filed in Cause No. 15603-74-5 was properly addressed and mailed to the District Clerk of Nacogdoches County, that it was deposited in the mail on May 9, 1974, in Lufkin, Texas, and was received by the United States Post Office in Nacogdoches, Texas, on May 13, 1974, but was not delivered to the District Clerk but was held by the United States Postal Service and was eventually returned to its attorney in Lufkin, Texas, on May 29th 1974. Appellant’s attorney also answered appellees’ motion for partial summary judgment by filing an affidavit in which he stated that he had deposited the insurance company’s petition in the mail at Lufkin, Texas, May 9, 1974, properly addressed to the District Clerk of Nacogdo-ches County, that the letter was returned to him on May 29th 1974, with a notation thereon “unclaimed — return to sender” and also a notation “postage due ten cents” and that no postage was actually due on the letter. He further stated that the letter containing the petition was never received by the District Clerk of Nacogdoches County and was returned to him after the deadline for filing the petition in court had passed, and that the reason for the late filing was the result of accident or mistake of the postal official and not the negligence of appellant’s attorney. In support of their motion for partial summary judgment, ap-pellees filed an affidavit made by the District Clerk of Nacogdoches County in which he stated that the insurance company’s petition was not received by him until May 28, 1974. He stated that he received no notification from the postal authorities that any mail was being held for him during the period of May 9, 1974, through May 15, 1974. He further stated he personally called for, and picked up, his mail each morning at the post office in Nacogdoches during such period of time and found no letter containing appellant’s petition.

On January 31, 1974, appellant filed a plea in abatement in appellees’ suit to mature the Board’s award (Cause No. 15603-74-6) alleging that appellees’ suit was premature and should be abated pending final disposition of appellees’ motion to dismiss the insurance company’s suit in Cause No. 15603-74-5 on the ground that the insurance company failed to timely perfect its appeal from the award of the Board.

With the two causes of action resting on the docket in the foregoing posture, the trial court granted the appellant’s motion to consolidate and entered an order consolidating all issues of law and fact into a new cause number, being No. 15627-74-6 which suit is the basis of this appeal.

After the consolidation the court proceeded to hear appellees’ motion for partial summary judgment. After the hearing the trial court rendered an interlocutory partial summary judgment reciting that there was no genuine issue of fact as to the following issues: (1) that American Motorists Insurance Company failed to timely perfect its appeal from the Board’s Award of April 10, 1974, (2) the right of Petitioners to have the Award of the Industrial Accident Board entered on April 10,1974, enforced; and (3) the rights of Petitioners to be awarded interest, penalty and attorney fees, in accordance with Article 8307, Section 5a of Vernon’s Annotated Civil Statutes. After a trial before a jury upon the issue of reasonable attorney’s fees, the trial court entered a final judgment maturing the award of the board and awarding appellees 12% damages and the sum of $3,750.00 for attorney fees.

By points one and two appellant urges that the trial court erred in granting a partial summary judgment for the reason that under the doctrine of equity, a fact issue existed as to whether its suit appealing from the award of the Board was timely filed. While conceding that the petition was not timely delivered to the District Clerk of Nacogdoches County, appellant argues the issue of whether the court acquired jurisdiction should not be determined on whether it failed to file within 20-calendar days, but should be determined on the issue of whether the facts constitute an excuse for its failure to file suit within 20 days as provided by the statute. We cannot agree with this proposition.

Rule 22, Texas Rules of Civil Procedure, provides that a suit in the District Court shall be commenced by a petition filed in the office of the Clerk.

By well settled judicial interpretation of Article 8307, Sec. 5, the jurisdiction of the trial court to hear and determine appellant’s suit appealing from the award of the Board, depends on appellant’s having filed its suit in the District Court of Nacogdoches County within 20 days after giving notice of appeal from the award of the Board. Clawson v. Texas Employer’s Ins. Ass’n., 475 S.W.2d 735, 738 (Tex.1972); Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084 (1926).

Appellant takes the position that its petition appealing from the Board’s award should be deemed to have been filed within the statutory time, since it was placed in the mail properly addressed in sufficient time for it to have reached the Clerk of the District Court within the 20-day period, and that appellant should not be charged with the delay caused by negligence on the part of the postal official. This identical question has been before the courts of this state on several occasions and has been decided adversely to appellant’s contention. The courts have held that where a party selects the mail as his vehicle for delivery, same becomes his agent, and, if a delay occurs which prevents delivery at its destination within the time allowed by statute, it is the fault of the sender rather than the receiver thereof.

Appellant having selected the United States mail as its vehicle, it became appellant’s agent, and therefore, appellant was bound by the postal authorities’ failure to deliver the letter within the 20-day period allowed by the statute. Long v. Martin, 112 Tex. 365, 247 S.W. 827 (1923); American General Insurance Co. v. Kohn, 425 S.W.2d 688, 690 (Tex.Civ.App.—Austin 1968, no writ); Texas Employer’s Ins. Ass’n v. Cook, 55 S.W.2d 205, 206 (Tex.Civ.App.—Waco 1932, no writ). See also Yancy v. Texas General Indemnity Company, 425 S.W.2d 683 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r. e.). Since the summary judgment proof shows that appellant did not file its petition in the District Court within twenty days after it gave notice that it would not abide by the award made by the Industrial Accident Board, the District Court did not, as a matter of law, acquire jurisdiction thereof. Richards v. Consolidated Underwriters, 411 S.W.2d 436, 437 (Tex.Civ.App.—Beaumont 1967, writ ref’d).

The record shows without dispute that neither party perfected an appeal from the Board’s award. Therefore, the award became final and created a debt owed by appellant to appellee. The only issues to be determined in appellee’s motion for partial summary judgment to mature the award were whether the award had been paid or whether appellant had justifiable cause for failure to pay and the amount of attorney’s fees to be awarded. Appellant does not contend payment was made or that it had justifiable cause for failure to pay. The undisputed summary judgment proof shows that the Board made an award in favor of appellees. Therefore, as a matter of law, the trial court was authorized to enter an interlocutory partial summary judgment in favor of appellees for the amount of the award rendered by the Industrial Accident Board.

By the third, fourth and fifth points appellant contends that the court erred in entering a final judgment based in part on the partial summary judgment for the reasons: (1) that the appellee’s motion for partial summary judgment was premature since the issue of jurisdiction had been joined in the first suit filed by appellant in Cause No. 15603-74-5 and a final adjudication on such issue was a condition precedent to appellee’s subsequent suit in Cause No. 15603-74-6 to mature the award of the Board, (2) that neither the partial summary judgment, nor the final judgment, disposed of the issues joined in Cause No. 15603-74-5 wherein the insurance company appealed from the award, and (3) that the court erred in overruling its plea in abatement to appellee’s suit to mature the award of the Board before the issue of jurisdiction had been determined in the first suit filed by appellant appealing from the award. We overrule the points.

In making this argument appellant apparently overlooks the fact that the trial court, upon appellant’s own motion, consolidated all issues of fact and law involved in the appellant’s suit attempting to appeal from the Board’s award and appellees’ suit to mature the award.

After consolidation all issues of law and fact were merged. 3 McDonald, Texas Civil Practice, sec. 10.24.2 (1970 revision). Thereafter, the court was not compelled to rule on the motions or pleas as if two separate cases were involved, but was authorized to carry all pleas and motions along in the consolidated case and rule thereon at the time of entry of final judgment. It must be presumed in support of the judgment that the trial court ruled on all motions and dilatory pleas in a manner favorable to the prevailing party. Points three through five are overruled.

This brings us to appellant’s group of points complaining of the submission of Special Issue No. 1, inquiring as to what sum of money would reasonably compensate appellees’ attorneys for their legal services. In connection with this issue the court instructed the jury that they might consider, among other things, the following: (a) the nature of the services rendered by the attorneys, (b) the capacity and fitness of the attorneys for the required work, (c) the interest at stake, (d) the benefit derived by the client, and (e) the services rendered by the attorneys and the length of time occupied thereby.

By points six through eight appellant contends the court erred in submitting Special Issue No. 1 on the ground that there was no evidence to support the submission of the issue and also on the ground that the jury’s answer thereto was against the overwhelming weight and preponderance of the evidence.

In proving up reasonable attorney’s fees, appellees offered the testimony of two attorneys who qualified as experts in the field of workmen’s compensation insurance litigation. According to their testimony, a reasonable attorney’s fee for the prosecution of appellees’ claim to mature the award and defending against the insurance company’s attempted appeal would range between $7,500.00 and $12,000.00. Appellant offered no evidence to the contrary. When viewed in a light most favorable to the verdict, we hold that the testimony was of sufficient probative force to sustain the jury’s verdict.

After a review of all the evidence relating to reasonable attorneys fees, we find that we cannot agree with appellant’s contention that the evidence is factually insufficient, or against the overwhelming weight and preponderance of the evidence. Trinity Universal Insurance Company v. Farley, 408 S.W.2d 776 (Tex.Civ.App.—Tyler 1966, no writ). Points six through eight are overruled.

By the ninth and tenth points appellant contends that the court erred in entering a partial summary judgment holding appel-lees were entitled to collect attorney’s fees because a fact issue existed as to whether appellees received any benefits from the efforts of their attorney. Alternatively, appellant contends the court erred in refusing to submit such an issue to the jury. We find no merit in either contention.

The record shows that the same attorneys represented appellees throughout this litigation. They filed suit to mature the Board’s award, defended appellant’s suit attempting to appeal from the award and obtained a judgment maturing the award of the Board. There is nothing in the record whatever to suggest that appel-lees received no benefit from their services. As we view the record, the summary judgment proof conclusively shows that appel-lees received some benefit from the efforts of their attorneys. Hence the record reflects no error in this regard. Points nine and ten are overruled.

Other points complaining of the .court’s instruction relating to matters which the jury could consider in determining a reasonable attorneys’ fee have been examined and found to be without merit. Points eleven through fourteen are overruled.

But one thing remains to be considered and that is appellees’ counterpoint seeking to invoke the provisions of Rule 438, Texas Rules of Civil Procedure. The rule provides that where the court finds upon appeal that the appeal was taken for delay, the court may assess damages in the amount of 10% of the judgment. While we find the appeal to be without merit, we do not believe we would be justified in holding that the appeal was “taken for delay and that there was no sufficient cause for taking such appeal.” Appellees’ counterpoint is overruled.

The judgment of the trial court is affirmed.

      . Article 8307, Section 5, states that: “ * * Any interested party who is not willing and does not consent to abide by the final ruling and decision of said Board shall, within twenty (20) days after the rendition of said final ruling and decision by said Board, file with said Board notice that he will not. abide by said final ruling and decision. And he shall within twenty (20) days after giving such notice bring suit in the county where the injury occurred to set aside said final ruling and decision, * * * ” Article 8307, Section 5, further provides that: “ * * * If any party to such final ruling and decision of the Board, after having given notice as above provided, fails within said twenty (20) days to institute and prosecute a suit to set the same aside, then said final ruling and decision shall be binding upon all parties thereto; * * * ”
      Section 5a of the statute provides that in all cases where the Board shall make a final order, ruling or decision and the insurance company shall fail or refuse to obey the same and shall fail or refuse to bring suit to set the same aside, the claimant may bring suit upon the order ruling or decision. “ * * * If he secures a judgment sustaining such order, ruling or decision in whole or in part, he shall also be entitled to recover the further sum of twelve per cent as damages upon the amount of compensation so recovered in said judgment, together with a reasonable attorney’s fee for the prosecution and collection of such claim. * * * ”


author: McKAY, Justice.

text:
    AMERICAN MOTORISTS INSURANCE COMPANY, Appellant, v. Vida Ree BOX et al., Appellees.
    No. 886.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 11, 1975.
    Rehearing Denied Jan. 8, 1976.

      Kenzy D. Hallmark, Zeleskey, Cornelius, Rogers, Berry & Hallmark, Lufkin, for appellant.
    William A. Badders, Badders & Keeling, Nacogdoches, for appellees.
   McKAY, Justice.

Appellant, American Motorists Insurance Company, filed suit in the District Court of Nacogdoches County, Texas, for an equitable bill of review to set aside a prior partial summary judgment rendered in another suit then pending in the same district court. Appellees, Vida Ree Box, et al., responded by filing a plea to the jurisdiction and a plea in bar. After consideration of the pleadings and the argument of counsel, the trial court dismissed the bill of review for want of jurisdiction. It is from this order of dismissal that appellant appeals.

The judgment which appellant seeks to review is a judgment rendered against appellant by the District Court of Nacogdo-ches County awarding appellees certain benefits under the Workmen’s Compensation Act. In order to understand the present suit for bill of review, we will undertake to state a brief history of the previous litigation between the parties. The pri- or suit originated from a claim for death benefits under the Workmen’s Compensation Act filed with the Industrial Accident Board by appellees. The Board awarded compensation benefits to appellees, and appellant gave notice of appeal. Appellant then attempted to perfect an appeal from the award of the Board by mailing a copy of its petition to the clerk of the District Court of Nacogdoches County for filing. The petition, however, did not reach the clerk of the district court within 20 days from the date notice of appeal was given as required by Article 8307, section 5, Y.A.T.S. Upon learning that its petition had not been timely filed, appellant then personally filed its petition in the district court. In the subsequent proceedings, appellant alleged that the late filing should be excused since the petition had been properly and timely mailed but had not been timely filed due to the accident or mistake of the United States Post Office in Nacogdoches.

Subsequently, appellees filed a separate suit in the same district court to mature the award of the Industrial Accident Board. Appellees filed a motion for summary judgment maturing the award, but before such motion was ruled on, the two suits were consolidated by the trial court. Then the trial court granted the motion of appellees and rendered partial summary judgment maturing the award of the Board on the grounds that no appeal had been taken from the Board’s award and that such award had, therefore, become final. The partial summary judgment was rendered on February 17, 1975, and recited that the amount of reasonable attorney’s fees was the only issue remaining to be resolved. Upon final judgment being rendered in said suit, appellant perfected an appeal to this court. On the 11th day of December, 1975, this court affirmed the trial court’s judgment awarding appellee’s certain workmen’s compensation benefits in a suit styled American Motorists Insurance Co. v. Vida Ree Box et al., 531 S.W.2d 401.

The bill of review suit made the basis of this appeal was filed in the same district court on February 17, 1975, before entry of a final judgment in the previous litigation, seeking to set aside the partial summary judgment and any final judgment in the previous suit. The petition for bill of review stated that appellant had a meritorious defense to the compensation claim of appellees which it was prevented from presenting due to the accident or mistake of the United States Postal Service and not due to any lack of diligence or care on the part of appellant.

In response to appellant’s petition for bill of review, appellees filed a plea to the jurisdiction and a plea in bar. The plea in bar alleged that appellant had failed to state a cause of action in that the petition “ . shows on its face that it is attempting, by Bill of Review, to set aside an interlocutory order and a judgment yet to be entered in a case pending in the trial court, from which an appeal, as a matter of law, is allowed.” The order of the trial court states, “The Court . . . is of the opinion and finds that the plea in bar is valid and meritorious and that this Court does not have jurisdiction, and it is accordingly ordered, adjudged and decreed that this case be dismissed for want of jurisdiction.”

On this appeal from the order of dismissal, appellant contends that the trial court had jurisdiction of the petition for equitable bill of review. We agree with appellant’s contention.

As stated in 4 McDonald, Texas Civil Practice Sec. 18.25 (1971), “ . only the court rendering the judgment has jurisdiction of a direct attack upon a judgment by way of bill of review” and “ . district courts obviously possess power to entertain such actions . . . ” Therefore, the District Court of Nacogdoches had jurisdiction of appellant’s equitable bill of review. In our opinion, however, dismissal was a proper disposition of the suit and the fact that the district court dismissed on incorrect grounds does not require a reversal of the order.

A bill of review is a separate suit seeking to set aside a final judgment and such a suit presumes the existence of a judgment which has become final by reason of the expiration of periods allowed for appeal. Schwartz v. Jefferson, 520 S.W.2d 881 (Tex.1975). 4 McDonald, supra, Sec. 18.27.6, also recognizes that where “the matters raised upon appeal or writ of error differ from those urged upon the bill of review, both methods of attack may be directed simultaneously against the same judgment . . .” We feel, however, that this latter rule is not applicable in this case. A limitation is placed on the litigant in that he cannot use an equitable bill of review to set aside the original judgment as a device to review any matters involved in the appeal or that could have been brought up by appeal. Winters Mut. Aid Ass’n Circle No. 2 v. Reddin, 49 S.W.2d 1095 (Tex. Comm’n App.1932, holding approved). We take judicial knowledge of the companion appeal from the original suit, and it is apparent that one of the objects of both the appeal and the separate bill of review is to excuse the failure of appellant to timely file its appeal from the award of the Industrial Accident Board. The appeal and the bill of review both involve the question of whether appellant will be charged with responsibility for the accident or mistake of the United States Postal Service in not properly forwarding appellant’s original petition to the clerk of the district court. Appellant has elected to utilize its remedy at law through appeal for decision of this question and cannot simultaneously maintain a bill of review concerning the same point. “An action seeking to set it (judgment) aside upon equitable grounds must, however, present matters which were not and could not have been urged on appeal . . .” 4 McDonald, supra, Sec. 18.27.6.

In our opinion, the equitable bill of review was filed prematurely. Appellant’s petition for bill of review shows that it was filed on the same day that the partial summary judgment was rendered. Therefore, appellant was seeking to set aside a judgment which was not yet final. Rule 329b(5), T.R.C.P. The trial court was authorized to take judicial knowledge of the record in the partial summary judgment case which was still pending before it. Davis v. Donalson, 91 S.W.2d 763 (Tex.Civ.App.—Dallas, 1936, writ dism’d). Moreover, the plea in bar filed by appellee brought the fact to the attention of the trial court that the bill of review was prematurely filed. When a bill of review is prematurely filed, it is within the discretion of the court to dismiss the suit. Phagan v. State, 510 S.W.2d 655 (Tex.Civ.App.—Fort Worth, 1974, writ ref’d, n. r. e.); Stein v. Lewisville Independent School District, 496 S.W.2d 737 (Tex.Civ.App.—Fort Worth, 1973, mand. overr.).

Although the trial court dismissed appellant’s suit for an incorrect reason, reversal is not required since dismissal could properly have been ordered on the grounds that the bill of review was prematurely filed. Rule 434, T.R.C.P.; Anthony v. Creech, 303 S.W.2d 414 (Tex.Civ.App.—Beaumont, 1957, appeal dism’d).

Dismissal of appellant’s bill of review was without prejudice. Consequently, we affirm the trial court’s order of dismissal.

Affirmed.