author: RALEIGH BROWN, Justice.

text:
    C. D. HICKS, Jr., Appellant, v. Zearl T. YOUNG et al., Appellees.
    No. 4978.
    Court of Civil Appeals of Texas, Eastland.
    Jan. 20, 1977.
    Rehearing Denied Feb. 17, 1977.
    Brad Reid, Bradbury & Tippen, Abilene, for appellant.
    Maurice V. Brooks, Brooks, Gordon & Long, Abilene, for appellees.
   RALEIGH BROWN, Justice.

Zearl T. Young and H. E. Field, based on a jury verdict, were granted an injunction prohibiting C. D. Hicks, Jr. from obstructing a public road. Hicks appeals. We reverse and remand and dissolve the injunction.

The injunction order restrains Hicks as follows:

“ . . .be perpetually enjoined to remove the gates and the fences built by Defendant, Hicks, on both sides of the road, same being a part of Survey 45, Block 15, T&P Ry. Co. Survey in Jones County, Texas, which road extends from the Clear Fork of the Brazos River northward to its intersection with the Hawley-Ft. Phantom Lake Road; said fences to be removed and not be rebuilt except on the line of the old fence in existence when the said C. D. Hicks, Jr., purchased his land; and that the Defendant, his agents, servants, and employees be and they are hereby perpetually enjoined from obstructing said public road with gates, electric fences, or any obstructions whatsoever, and from in any way damaging, destroying or injuring the roadbed thereof; further, that Defendant C. D. Hicks, Jr., his agents, servants, and employees be and the same are hereby perpetually enjoined from interfering with the use of said road in any manner whatsoever by Plaintiffs and from harassing Plaintiffs in any manner whatsoever in their use of the road.”

The record before this court fails to establish with specificity either the location or the width of the road in question, or the location of the line of the old fence in existence when the said C. D. Hicks, Jr. purchased his land.

Rule 683, T.R.C.P., provides:

“Every order granting an injunction . shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained; . . . ”

These requirements are mandatory. Eastex Wildlife Conservation Association v. Jasper et al., County Dog and Wildlife Protective Association, 450 S.W.2d 904 (Tex. Civ.App. — Beaumont 1970, writ ref. n. r. e.); City of Fort Worth v. McDonald, 293 S.W.2d 256 (Tex.Civ.App. — Fort Worth 1956, writ ref. n. r. e.); Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953); Gonzalez v. Rodriguez, 250 S.W.2d 253 (Tex.Civ.App. —San Antonio 1953, no writ).

An injunction must be definite, clear and concise. The cases state it should leave nothing for further hearing and decision. Gulf Oil Corporation v. Walton, 317 S.W.2d 260 (Tex.Civ.App. — El Paso 1958, no writ); Villalobos v. Holguin, 146 Tex. 474, 208 S.W.2d 871 (1948); Borden Co. v. Local No. 133 of International Brotherhood of Teamsters, Chauffeurs, Stablemen, and Helpers of America, 152 S.W.2d 828 (Tex.Civ.App.— Galveston 1941, writ ref.).

The order fails to meet the standards of definiteness, clearness, and conciseness as required. The injunctive order is therefore void for uncertainty and should be dissolved.

The judgment of the trial court is reversed and the cause remanded. The injunction is dissolved.


source: Caselaw Access Project

author: OSBORN, Justice.

license: Public Domain

text:
    LILLY DISTRIBUTING COMPANY OF SAN ANTONIO, Appellant, v. ASSOCIATED MILK PRODUCERS, INC., et al., Appellees.
    No. 6620.
    Court of Civil Appeals of Texas, El Paso.
    May 25, 1977.

      Law Office of Kermit W. Fox, Jr., Kermit W. Fox, Jr., San Antonio, for appellant.
    House, Mercer, House, Brock & Wilson, David B. Person, Frank D. Masters, San Antonio, for appellees.
   OPINION

OSBORN, Justice.

This is a venue case. The trial Court sustained the plea of privilege of the Defendant, Hugh Preston, d/b/a Preston Dairy Products. We affirm.

Lilly Distributing Company of San Antonio (Lilly) filed suit against Associated Milk Producers, Incorporated (AMPI) and Preston Dairy Products (Preston) to recover damages resulting from its loss of a contract to furnish milk to the Alamo-Pharr-San Juan School District. It was alleged that Lilly contracted with the Defendants for a supply of processed and packaged milk to be delivered to Lilly for its distribution to school district customers. It was further alleged that milk was delivered which contained an abnormally high bacteria content, making it unfit for its intended purposes. Lilly asserted that in November, 1974, the school board cancelled the contract for the school year and has refused to renew the contract in subsequent years. Lilly seeks to recover damages for its economic loss resulting from the cancellation of its contract.

Arthur S. Davis, Jr., a vice president of Lilly, was the only witness to testify at the venue hearing. He said his company had an oral agreement with Preston for delivery of packaged milk, mostly half pints of homogenized milk, to Harlingen, Texas, at a guaranteed sale price. He admitted that Lilly had no contract with AMPI. He said he had seen a letter which AMPI wrote to Preston acknowledging that it had shipped a bad supply of milk to Preston, who in turn supplied Lilly. The letter is not in evidence, Davis said that the milk supplied in the fall of 1974 was a bad product, was sour, and had a high bacteria content. He acknowledged that he did not check the milk himself and the opinion as to its suitability for human consumption was based entirely on hearsay. He said orders for milk were placed with Preston’s office in San Antonio, and when the school district paid Lilly, it endorsed the checks to Preston as payment on its account and received a check back from Preston which was the amount of Lilly’s profit on sales to the school district.

The Appellant asserted in its controverting plea, and now asserts by points of error in this Court, that venue was properly established in Bexar County under Subdivisions 27 and 29a of Article 1995, Tex.Rev. Civ.Stat.Ann. It also now asserts the applicability of Subdivision 31.

Clearly, Subdivision 27 alone has no application as to Preston. Plaintiff’s original petition alleged that Preston Dairy Products was a sole proprietorship owned by Hugh Preston whose address was alleged to be in Wichita County, Texas. This pleading was incorporated into the controverting plea and asserted under oath to be true and correct.

Appellant contends that venue is properly maintainable in Bexar County under Subdivision 27 as to AMPI and that under Subdivision 29a, venue is proper as to Preston, a necessary party-defendant in the suit against AMPI. We conclude otherwise. Mr. Davis readily admitted that Lilly had no contract with AMPI. In order to recover from that Defendant for economic loss, under the doctrine of strict liability, privity of contract was necessary. Henderson v. Ford Motor Company, 547 S.W.2d 663 (Tex.Civ.App. — Amarillo 1977, no writ); Eli Lilly and Company v. Casey, 472 S.W.2d 598 (Tex.Civ.App. — Eastland 1971, writ dism’d); Thermal Supply of Texas, Inc. v. Asel, 468 S.W.2d 927 (Tex.Civ.App. — Austin 1971, no writ). Contra, Nobility Homes of Texas, Inc. v. Shivers, 539 S.W.2d 190 (Tex.Civ.App. — Beaumont 1976, writ granted).

There is yet another reason why Appellant cannot prevail under Subdivision 29a. To sustain venue under that exception, a plaintiff must offer proof, independent of any pleadings, which establishes that a defendant as to whom venue is sought to be maintained under Subdivision 29a is a necessary party in the suit with the defendant as to which venue is maintained under some other Subdivision of Article 1995. Ladner v. Reliance Corporation, 156 Tex. 158, 293 S.W.2d 758 (1956). Without proof of joint responsibility, the Plaintiff has failed to meet its burden of proof under Subdivision 29a. Loop Cold Storage Company v. South Texas Packers, Inc., 491 S.W.2d 106 (Tex.1973); Vahlsing, Inc. v. Esco, Ltd., 496 S.W.2d 652 (Tex.Civ.App.— Corpus Christi 1973, writ dism’d). The trial Court properly recognized that there was no proof to establish such element of Plaintiff’s case. Thus, we conclude that the trial Court properly sustained the plea of privilege, regardless of what decision the Supreme Court may ultimately "reach on the issue of privity in the Shivers case.

Finally, the Appellant contends venue was established under Subdivision 31. This relatively new exception provides for venue in suits for breach of warranty by a manufacturer of consumer goods in the county where' the cause of action or a part thereof arose, or where the manufacturer has an agency or representative, or where its principal office is situated, or where the plaintiff resides. Although the controverting plea did not expressly refer to Subdivision 31, it did incorporate the Plaintiff’s original petition by reference. That pleading alleges that the milk which was delivered was “unfit for its intended purposes,” thereby alleging breach of an implied warranty. But, there was neither pleading nor proof that Preston was a manufacturer. If, in fact, the milk did originally come from AMPI, that Defendant may have been the manufacturer, but certainly the record does not establish that in this case. At best, it only indicates that Preston was a supplier or wholesaler of milk it received from another source. The trial judge was correct in noting that there was no proof that Preston was a manufacturer. Thus, Subdivision 31 was not applicable. White Stores, Inc. v. Fielding, 533 S.W.2d 431 (Tex.Civ.App. — Corpus Christi 1976, no writ).

We have considered all of Appellant’s points of error and they are all overruled. The judgment of the trial Court is affirmed.

      . All Subdivision references are to Article 1995, Tex.Rev.Civ.Stat.Ann.


author: McDONALD, Chief Justice.

text:
    Nellie Bell BAUGHTMAN, nee Edge, Appellant, v. ELECTRIC INSURANCE COMPANY and Jack Traylor, Individually and d/b/a Jack Traylor Insurance Agency, Appellees.
    No. 5677.
    Court of Civil Appeals of Texas, Waco.
    June 2, 1977.
    Rehearing Denied June 30, 1977.
    Buford A. Cates, Jr., Dallas, for appellant.
    W. Richard Bernays, Touchstone, Bernays & Johnston, John L. Lancaster, III, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Baughtman from an order of the trial court dismissing plaintiff’s case for want of jurisdiction.

Plaintiff sued defendants Insurance Company and Traylor, an insurance agent, on an insurance policy issued by defendant Insurance Company and sold by defendant Tray-lor.

On May 27,1975 the trial court dismissed plaintiff’s case for want of prosecution. On May 29, 1975 plaintiff’s counsel learned of such dismissal, and on June 12, 1975 filed motion to vacate order of dismissal and to reinstate the case. Attorneys for both defendants wrote letters to the trial court that they had no objection to reinstatement of the case. No action was taken by the trial court on such motion until August 28, 1975 when it granted the motion and reinstated the case. Thereafter the case was set for trial, and defendants moved the court to dismiss the case for want of jurisdiction. The trial court granted such motion, and on March 22,1976 dismissed plaintiff’s case for want of jurisdiction.

Plaintiff appeals on 4 points contending this case should be reversed because:

The trial court’s order of dismissal for want of jurisdiction on March 22, 1976 incorrectly concluded the court was without jurisdiction to enter its prior reinstatement order of August 28, 1975.

And Plaintiff states in her brief the controlling question on this appeal is limited solely to the issue of whether the court did — pursuant to Rule 165a TRCP possess jurisdiction on August 28, 1975 to enter the reinstatement order.

The suit was dismissed for want of prosecution on May 27; plaintiff learned of same May 29; filed motion to reinstate on June 12; motion to reinstate was granted on August 28, 93 days after the entry of order of dismissal.

Prior to Rule 165a TRCP the trial court lost jurisdiction to reinstate a case dismissed for want of prosecution after the expiration of 30 days.

Rule 165a provides in part:

‘‘Within thirty days after the signing of the order of dismissal, the court shall reinstate the case upon finding, after hearing, that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to accident or mistake. Where after a hearing the court finds that neither the party nor his attorney received a mailed notice, or acquired actual notice in any manner, of either the court’s intention to dismiss or the order of dismissal prior to the expiration of twenty days after the signing of such order, the court may reinstate the case at any time within thirty days after the party or his attorney first received either a mailed notice or actual notice, but in no event later than six months after the date of signing the order of dismissal.”

Thus, where plaintiff has notice of the dismissal within 20 days, as here, the order of reinstatement can only be made within 30 days after the signing of the order. This was not done in this case. The trial court was without jurisdiction on .August 28,1975 to enter the order of reinstatement. See: Caddell v. Gray, CCA (Waco) NWH, 544 S.W.2d 481; Cosper v. Aetna Lite & Casualty Company, CCA (Dallas) NWH, 513 S.W.2d 121; Biley v. Mead, CCA (El Paso) NWH, 531 S.W.2d 670; Calaway v. Gardner, CCA (Houston 14) NWH, 525 S.W.2d 262; Bowen v. Armstrong, CCA (El Paso).

All plaintiff’s points are overruled.

AFFIRMED.


author: HALL, Justice.

text:
    George McCASLAND, Appellant, v. NATIONAL LLOYDS INSURANCE COMPANY, Appellee.
    No. 5709.
    Court of Civil Appeals of Texas, Waco.
    June 2, 1977.
    Rehearing Denied June 30, 1977.

      J. C. Jacobs, Corsicana, for appellant.
    Sherwin A. Winniford, Haley, Fulbright, Winniford, Bice & Davis, Waco, for appel-lee.
   HALL, Justice.

Appellant George McCasland is the named mortgagee-payee in a Texas Standard Fire Policy issued by appellee National Lloyds Insurance Company insuring a house owned by J. Tobin Moore for $12,500.00. In June, 1975, when the policy was in force, the house was totally destroyed by fire. McCasland brought this suit against appellee for $11,481.29, the alleged amount of his interest in the property at the time of its destruction. Appellee defended under a provision of the policy providing that it “shall be void” in the event of willful misrepresentation or concealment or any fraud by the insured “concerning this insurance, or the subject thereof, or the interest of the insured therein”; and pleaded that Moore intentionally and grossly overvalued the property in his application for insurance, that McCasland was aware of this deceit, that appellee relied upon the misrepresentation of value, and that the fraud materially induced the issuance of the policy.

Trial was to a jury which answered all issues favorably to appellee, as follows:

(1) When Moore made application for the policy in question he represented to appellee’s agent that the house had an actual cash value of $12,500.00;
(2) Moore intended for the agent to rely upon the representation;
(3) The representation was false;
(4) Moore knew it was false;
(5) The agent relied upon the representation and was thereby induced to submit the application to appellee;
(6) Appellee would not have written the policy “in the amount shown thereon” except for Moore’s false representation;
(7) Moore grossly overvalued the actual cash value of the house in his application;
(8) He knew he was doing so;
(9) He intended for the agent to rely upon the gross overvaluation;
(10) The agent relied upon it and was thereby induced to submit the application to appellee;
(11) Appellee would not have written the policy “in the amount shown thereon” except for Moore’s gross overvaluation;
(12). McCasland “was aware that the value of the property would be falsely represented at the time the insurance would be applied for”;
(13) McCasland intended that the false representation be relied upon by ap-pellee’s agent;
(14) McCasland was aware that the property “would be grossly overvalued at the time the insurance would be applied for”;
(15) McCasland intended that the gross overvaluation be relied upon by ap-pellee’s agent; and
(16) Appellee made a reasonable effort to inspect the house before the fire.

Judgment was rendered on the verdict that McCasland take nothing. He appeals contending there is no evidence to support the jury’s answers to issues 12,13,14 and 15 (which are based upon findings of misrepresentations by Moore). This contention is grounded on two theories: First, that because appellee failed to attach Moore’s application to the policy as required by Y.A. T.S. Insurance Code, Art. 21.35, evidence of Moore’s misrepresentations was not admissible on the trial as a matter of law; and, secondly, that in any event the evidence adduced on the trial was not legally sufficient to support the questioned findings. We overrule the last contention, but affirm the first one and reverse the judgment.

In testing “no evidence” complaints, appellate courts may consider only the proof and its inferences which support the findings in dispute. When we do that here, we find evidence that the house in question was a frame house of box-type construction; that it was old and rundown; that it was located in a sparsely settled rural community and was virtually abandoned; that when Moore made application for the policy in question, both he and McCasland knew the actual cash value of the house was somewhere between $500.00 and $3,000.00; that Moore represented to appellee’s agent that the value of the house was $12,500.00; that McCasland instructed Moore, to secure insurance on the house in the amount of at least $11⅛500.00; and that excepting the concrete blocks upon which it stood, the house was wholly consumed by the fire. This evidence supports the findings in question.

Article 21.35, V.A.T.S. Insurance Code, provides in pertinent part that “every contract or policy of insurance issued or contracted for in this State shall be accompanied by a written, photographic or printed copy of the application for such insurance policy or contract, as well as a copy of all questions asked and answers given thereto.” It is settled that noncompliance with this statutory provision prevents the insurer from using statements made by an insured in the policy application as evidence of misrepresentations and fraud to defeat coverage. Johnson v. Prudential Insurance Co. of America, 519 S.W.2d 111, 114 (Tex.Sup.1975).

The policy in question does not include a copy of Moore’s application or statements made relating to the value of the house.

Our problem is that Article 21.35 was not argued by McCasland on the trial in support of his contentions, but was raised by him for the first time on appeal. Nevertheless, the cases hold that compliance with the statute is mandatory, that proof of compliance is a necessary predicate by an insurer if it would avoid its policy on the ground of fraud inducing the contract, and that noncompliance renders the allegedly fraudulent statements inadmissible. Southwestern Surety Ins. Co. v. Hico Oil Mill, 229 S.W. 479, 482 (Tex.Com.App.1921, judgment adopted); American Surety Co. v. West State Bank, 4 S.W.2d 312, 313 (Tex.Civ.App. Waco 1928, writ ref.); American Indemnity Co. v. Baldwin Motor Co., 19 S.W.2d 848, 849 (Tex.Civ.App.Texarkana 1929, writ dism.). We therefore believe and hold that the lack of proof of compliance with the statute by appellee is germane to McCas-land’s “no evidence” points here, albeit not argued by him to the trial court, and is therefore properly before us. Accordingly, the points are sustained and the judgment is reversed. Because the impact of the statute apparently was not contemplated by the parties or the court on the trial, we believe justice requires a remand of the case rather than rendition of judgment.

Reversed and remanded.


author: McCLOUD, Chief Justice.

text:
    Mildred E. AUSTIN et al., Appellants, v. Victor Leon AUSTIN, Appellee.
    No. 5046.
    Court of Civil Appeals of Texas, Eastland.
    June 2, 1977.
    Rehearing Denied July 7, 1977.
    Terry L. Belt, Mitchell, George & Belt, Austin, for appellants.
    Harriet Samon Owen, Austin, for appel-lee.
   McCLOUD, Chief Justice.

Mildred Austin sued her husband, Victor Austin, for divorce and division of property. Following a nonjury trial, the court orally announced its decision in open court regarding the division of property and entered a notation on the court’s docket stating “divorce granted as prayed for.” Mildred Austin died before a written order was signed by the court. Following the death of the plaintiff, the defendant, Victor Austin, filed a “Plea in Abatement for Dismissal of Non-surviving Cause of Action.” The legal representatives of Mildred Austin intervened and contested the motion filed by defendant. The court granted Victor Austin’s motion and dismissed the cause. The trial court at no time entered a written order either granting or denying the divorce. The order entered dismissed the cause. The dismissal order also states that Mildred Austin failed to prove her cause of action. Appellants, the legal representatives of the deceased Mildred Austin, have appealed. We reverse and remand.

The divorce action between Mildred Austin and Victor Austin was heard by the court on February 12, 1976. On that date, at the conclusion of the evidence and arguments of counsel, the trial court announced in open court the manner in which the property was to be divided. The statement of facts does not show that the court orally stated divorce granted to Mildred Austin; however, the court’s docket sheet reveals that on February 12, 1976, divorce was “granted as prayed for.” Mildred Austin died on March 7, 1976.

Appellants contend the court “rendered” final judgment on February 12, 1976, and that upon the death of Mildred Austin, the court lost jurisdiction to enter any order other than a written order evidencing the terms and provisions of the oral pronouncement on February 12, 1976.

Appellee, Victor Austin, argues no judgment of divorce had been rendered prior to the death of Mildred Austin, therefore, the court was correct in dismissing the cause. See Parr v. White, 543 S.W.2d 445 (Tex.Civ.App., Corpus Christi 1976, no writ).

We must first determine if judgment was rendered by the court on February 12,1976. In Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912), after reviewing the docket entry made by the judge, the court said:

“The judgment of a court is what the court pronounces. Its rendition is the judicial act by which the court settles and declares the decision of the law upon the matters at issue. Its entry is the ministerial act by which an enduring evidence of the judicial act is afforded.”

In Knox v. Long, 152 Tex. 291, 257 S.W .2d 289 (1953), the court approved a statement in Freeman on Judgments, 5th Ed., Vol. 1, Sec. 48, pp. 80 and 81, which said that a judgment is “rendered” when the decision is officially announced in open court or by memorandum filed with the clerk. See also Comet Aluminum Company v. Dibrell, 450 S.W.2d 56 (Tex.1970).

The power of a trial court in a divorce case to determine property rights depends upon the granting of a divorce. Christie v. Tipps, 279 S.W.2d 142 (Tex.Civ.App., Eastland 1955, no writ); Carter v. Carter, 336 S.W.2d 466 (Tex.Civ.App., Austin 1960, no writ).

In the instant case, the parties owned substantial property and the court very carefully announced its decision regarding the division. We find nothing in the statement of facts showing that the court orally announced it was granting Mildred Austin a divorce, however, we think in view of the detailed property division and the docket entry, the court “rendered” its decision on February 12, 1976. See Texas State Board of Examiners in Optometry v. Lane, 337 S.W.2d 801 (Tex.Civ.App., Forth Worth 1960, writ ref’d); Crawford v. Crawford, 315 S.W.2d 190 (Tex.Civ.App., Waco 1958, no writ).

Appellants rely upon Blain v. Broussard, 99 S.W.2d 993 (Tex.Civ.App., Beaumont 1936, no writ) and Dunn v. Dunn, 439 S.W.2d 830 (Tex.1969) to support their argument that the court had no jurisdiction to enter the order of dismissal after the death of Mildred Austin. In Blain, the trial court entered in its docket that a divorce was granted to the plaintiff. Before a written order was signed, the defendant died. The plaintiff then filed a motion, which was granted, requesting that the cause be dismissed. The Court of Civil Appeals held that after the death of the defendant, the trial court no longer had jurisdiction to review its action and the order of the trial court granting plaintiff a “new trial” was void. The court held that a written order evidencing the court’s oral rendition should be entered nunc pro tunc. Blain followed those cases which held that the primary and substantive subject of a divorce suit is the personal relation of the parties, and their right to the community property is only incidental.

The Court of Civil Appeals in Dunn v. Dunn, 430 S.W.2d 27 (Tex.Civ.App., Tyler 1968), rev'd, 439 S.W.2d 830 (Tex.1969) held that the death of a party after oral rendition of judgment abated the action and the cause should be dismissed because the issue of divorce ended and the matter became moot.

The Supreme Court in Dunn v. Dunn, 439 S.W.2d 830 (Tex.1969) noted the conflict between the holding of the Court of Civil Appeals and Blain. The court observed that neither case contained a satisfactory enunciation of the law controlling upon the death of a party subsequent to rendition of judgment. After finding the trial court had orally rendered judgment, the Supreme Court held that since property rights of the parties would be significantly affected the case did not abate upon the death of either party after rendition of judgment. The court further observed that the representative of the deceased party could perfect an appeal under Rule 369a, T.R.C.P.

We hold that since judgment was rendered on February 12, 1976, and it affected the property rights of the parties, the court did not lose jurisdiction of the cause upon the subsequent death of Mildred Austin. The case should be treated like any other case involving the death of a party after rendition of judgment. The death of Mildred Austin did not remove from the court the power to amend or modify its former oral rendition of judgment.

Appellants also argue the court lost jurisdiction to modify its judgment 30 days after February 12,1976, the date judgment was orally rendered. We disagree. The trial court retains control over a cause, irrespective of a prior oral decision, until 30 days after the written order is entered. Ex Parte Godeke, 163 Tex. 387, 355 S.W.2d 701 (1962); Fourticq v. Fannin Bank, 461 S.W.2d 251 (Tex.Civ.App., Houston (14th Dist.) 1970, writ ref. n.r.e.); Marulanda v. Mendez, 501 S.W.2d 366 (Tex.Civ.App., San Antonio 1973, writ ref. n.r.e.); Ex Parte Johnny G, 512 S.W.2d 821 (Tex.Civ.App., San Antonio 1974, no writ).

We hold that a dismissal, rather than an order either granting or denying the divorce, was an improper order. The cause did not abate upon the death of Mildred Austin. The court continued to have jurisdiction over the controversy. A written order either granting the divorce and dividing the property or denying the divorce should be entered. A dismissal of the cause was improper.

Judgment of the trial court is reversed and the cause remanded.


author: CIRE, Justice.

text:
    UNITED STATES LEASING CORPORATION, Appellant, v. O’NEILL, PRICE, ANDERSON & FOUCHARD, INC., Appellee.
    No. 1643.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 8, 1977.

      William A. Petersen, Jr., Lapin, Totz & Mayer, Houston, for appellant.
    W. Steven Winter; Winter & Associates, Inc., Houston, for appellee.
   CIRE, Justice.

Plaintiff appeals from the dismissal of its action with prejudice for failure to comply with a discovery order.

Plaintiff-appellant United States Leasing Corp., a California corporation, sued defendant-appellee O’Neill, Price, Anderson & Fouchard, Inc. for payment of rentals allegedly due on a lease of equipment. Defendant answered and, on October 16, 1975 filed interrogatories which it requested plaintiff answer within 16 days of receiving them. On October 21, plaintiff filed exceptions to the interrogatories, which were sustained in part by order of the court on November 21; this order further allowed plaintiff an additional 60 days to answer the interrogatories. On August 4, 1976 defendant filed a motion to compel answers to interrogatories, which motion was granted by an order of the court on September 30, 1976. The court ordered plaintiff to answer the interrogatories on or. before October 10,. 1976 (a . Sunday), and further ordered “that if Plaintiff does not comply with this Order,, within the time specified, that the .plaintiff’s responsive answers shall be struck, and Judgment be . rendered against it....”

Plaintiff filed answers to the interrogatories on October 11, 1976 (a Monday). The answers showed that they were given by Walter A. Hunter, of San Francisco, California, assistant vice'president of plaintiff corporation. However, the answers were not signed by Hunter, but by plaintiff’s attorney. Attached to the answers was an affidavit stating that'the answers were furnished by plaintiff’s agent, that the attorney had been authorized to execúte the answers in plaintiff’s béhalf and in Hunter’s name, and that, based upon the information furnished by plaintiff, the answers were true and correct.

On October 11 defendant filed a motion to dismiss the suit with prejudice, giving as. its sole reason therefor that no answers to the interrogatories had yet been served upon it. Defendant’s counsel received the answers the next day, October 12.' After a . hearing, the court ordered plaintiff’s action dismissed with prejudice, from which order plaintiff appeals.

Defendant-appellee now stipulates that the answers were timely filed, but justifies the trial court’s dismissal of the suit on Hunter’s failure to sign the answers. Defendant points out that under rule 168, Texas Rules of Civil Procedure, answers to interrogatories shall be signed by the person making them. And though rule 14 authorizes a party’s attorney or agent to make an affidavit for the party, this rule is specifically excluded from the requirements for answering interrogatories undeir rule 168.

We agree that, under rule 168, a corporation’s attorney may not sign answers to interrogatories given by some other agent or employee of the corporation, but the defect in the verification of the answers was never brought to the attention of plaintiff or the court as a ground for dismissing the action. We believe the proper course would have been for the defendant to file a motion io strike the answers stating his grounds therefor, thus giving plaintiff an opportunity to correct the defect. This was not done, and plaintiff had no reasonable notice of this deficiency.

The court, in dismissing the action with prejudice, sought to use the sanctions available to it to compel compliance with its discovery order under rule 215a(c). We are convinced of the value of pre-trial discovery in our system and that, to be effective, the trial court must frequently impose sanctions in order to enforce its discovery orders. .. We further recognize that the imposition of such sanctions is a matter of discretion for the trial court, and that its judgment will be set aside only upon a clear showing of abuse. But the office of sanctions is to secure compliance with the discovery rules, not to punish erring parties. Robison v. Transamerica Ins. Co., 368 F.2d 37, 39 (10th Cir. 1966); Ebeling v. Gawlik, 487 S.W.2d 187, 190 (Tex.Civ.App. — Houston [1st Dist.] 1972, no writ). It was an abuse of discretion to dismiss this case with prejudice for a deficiency in form of which plaintiff had no reasonable notice. Ebeling v. Gawlik, supra, at 189.

The judgment of the trial court is reversed, and the case is remanded.


author: KLINGEMAN, Justice.

text:
    Jose A. HERNANDEZ, Appellant, v. Mary Helen SIMBECK, Appellee.
    No. 15792.
    Court of Civil Appeals of Texas, San Antonio.
    June 8, 1977.
    Ruben Salazar, Del Rio, for appellant.
    Sol E. Arledge, Del Rio, for appellee.
   KLINGEMAN, Justice.

This is a suit by Jose A. Hernandez against his daughter, Mary Helen Simbeck, to impress a resultant trust on certain lots in the City of Del Rio conveyed by sheriffs sale to Mary Helen Simbeck, and asking that the court order defendant to execute a deed conveying such property to plaintiff. Trial was to the court, who, after a hearing, decreed that plaintiff take nothing by his suit. The parties will be herein referred to as they were in the trial court.

Plaintiff asserts three points of error, which may be summarized as follows: 1. The court erred in ruling against the plaintiff based upon a variance between the pleadings and the proof. 2. The court erred because evidence not in accordance with the pleadings must be objected to, otherwise the case will be tried on any theory brought out by the evidence. 3. The court erred in permitting appellee’s counsel to argue that appellant had alleged one thing and proven another.

Defendant asserts that such points of error challenge no action or ruling by the court and are too general, multifarious, and argumentative to specify error.

As we understand plaintiff’s points of error and the brief in connection therewith, such points of error pe based upon the belief by plaintiff that the trial court decided what it did because of a variance between the pleadings and the evidence. We find no basis in the record for this contention by plaintiff. After a hearing which included testimony by both plaintiff and defendant and the introduction into evidence of numerous exhibits, the court entered the herein judgment, which recited that after considering the pleadings, the evidence, and the argument of counsel, the court was of the opinion that the law and the facts were with the defendant, and entered a take-nothing judgment against plaintiff.

The only witnesses to testify were plaintiff and defendant. The documentary evidence was quite extensive and included (a) the deed of conveyance from Herman J. Richter, Sheriff of Val Verde County, to Mary Helen Simbeck, dated September 15, 1971, conveying various lots, including the lots here involved; (b) a check of plaintiff to Herman Richter, dated September 15, 1971, in the amount of $2,125.00 with a notation thereon, “Tax Sale”; (c) numerous checks from defendant in payment of taxes; (d) numerous tax receipts from various tax agencies in Del Rio evidencing payment of taxes by defendant; (e) a partition deed dated October 23, 1975 between Jose A. Hernandez and his children, Mary Helen Simbeck and Jose Mario Hernandez, partitioning and dividing certain properties, but not including the lots here involved.

Both plaintiff and defendant testified in some detail. In effect, plaintiff testified that he paid for the property sold at the sheriff’s sale here involved; that the property was placed in defendant’s name because he had other property that he had acquired with his wife, who had passed away; that he didn’t want to get the properties mixed up; that he asked his daughter if he could put it in her name for a few days, and she said it was alright. He also testified that there were two reasons that the property was placed in her name. 1. He was trying to keep it separate from the community property. 2. He didn’t want to have property in his own name in order to avoid paying inheritance taxes. He testified that one of the lots conveyed to defendant in such sheriff’s deed was later conveyed to another person, at his request, by defendant; and that the money went to him.

Defendant testified that the property was given to her by her father; that he told her he probably wouldn’t live long and he didn’t want her to have any problems in regard to such property. She testified that she did sign a deed to one of the lots to another person in 1974, at her father’s request, because she thought he was in need of money and she wanted to help him.

Plaintiff, in rebuttal, denied there was a gift of such property to defendant.

While there is a serious question of whether plaintiff’s points of error present anything for this Court to review, even if we consider them as sufficiency of evidence points of error, there is sufficient evidence in the record to support the trial court’s judgment.

The record contains no findings of fact or conclusions of law or any request for such findings. Where no findings of fact or conclusions of law are requested of or filed by the trial court, an appellate court must presume every disputed fact issue was found by the trial court in support of the judgment, and the judgment of the trial court should be affirmed if it can be upheld on any legal theory that finds support in the evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962); City of Dallas v. Furrh, 541 S.W.2d 271 (Tex.Civ.App. — Texarkana 1976, writ ref’d n.r.e.); Collins v. Collins, 540 S.W.2d 497 (Tex.Civ.App. — Tyler 1976, no writ); Tejas Trail Property Owner’s Association v. Holt, 516 S.W.2d 441 (Tex.Civ.App. —Ft. Worth 1974, no writ).

Moreover, in a non-jury case, the trial court is the judge of the credibility of witnesses and the weight to be given their testimony. Great American Insurance Co. v. Murray, 437 S.W.2d 264 (Tex.1969); Loeb, Rhoades & Co. v. Stanley, 541 S.W.2d 869 (Tex.Civ.App. — Corpus Christi 1976, no writ); Toungate v. Toungate, 529 S.W.2d 247 (Tex.Civ.App. — Austin 1975, no writ).

The testimony as to whether there was a gift is conflicting, with plaintiff testifying that there was no gift and defendant testifying that there was. Plaintiff did testify that he didn’t want the property in his own name in order to avoid paying inheritance taxes. Moreover, in addition to the fact that the record title to such property is in defendant’s name and has been for a number of years, the record also discloses that the defendant paid taxes on the property during such time, and also paid for paving improvements on some of such lots.

The trial court impliedly found that there was a gift of such property, and also impliedly found that plaintiff failed to establish a resultant trust. Such findings are sufficiently supported by the record.

All of plaintiff’s points of error are overruled. The judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    Alicia Sharon (O’Hearn) GLASS, Appellant, v. Daniel Patrick O’HEARN, Appellee.
    No. 17865.
    Court of Civil Appeals of Texas, Fort Worth.
    June 9, 1977.
    Philip S. Kouri and T. W. Schueller, Wichita Falls, for appellant.

      Howard L. Martin, Wichita Palls, for ap-pellee.
   OPINION

MASSEY, Chief Justice.

Parties to the appeal were formerly husband and wife. The wife sued for and obtained judgment of the trial court for divorce. However, she failed to prevail by the portion of her petition wherein she sought to obtain custody (to be the managing conservator) of the parties’ minor child, Ronny Paul, born in October of 1971. By the judgment of the court Daniel Patrick O’Hearn was given custody of Ronny Paul, with the decree of the court that the child’s mother pay to him the sum of $50.00 per month as child support. From this judgment the mother appealed.

We affirm.

Trial below was held subsequent to the amendment (effective May 27,1975) of V.A. T.S. art. 2324, “Duty of Reporter”. Neither party requested that a reporter be present on trial for purposes of recording the testimony. Thereby right to a stenographic record of the trial was waived. Where that situation has obtained a party desiring to appeal must obtain agreement of his adversary upon the statement of facts, if any is to be a part of the appellate record, and failing the agreement he must obtain from the court (if that is possible) the statement of facts by which he will be bound on appeal. T.R.C.P. 377(d), “Statement of Facts”.

In this case the parties were unable to agree on the statement of facts, as result of which all questions relative thereto were settled by the trial court having made its own statement, filed with the clerk and made a part of the transcript. Appellant was most unhappy with the court’s statement of the facts and this was obvious upon the hearing of her appeal. No matter how dissatisfied he might be an appellant is nevertheless bound by the court’s statement of the facts in instances like unto that here presented.

Appellant requested that the trial court file findings of fact and conclusions of law, by T.R.C.P. 296, “Conclusions of Fact and Law”. Such were filed by the court and made a part of the record.

Plaintiff/appellant wife’s first point of error complains that findings of fact Nos. 6 to 9, inclusive, and conclusions of law Nos. 4 and 5, were unsupported by the evidence in the trial court’s own statement of facts and were so contrary to the greater weight and preponderance of the evidence as to be clearly erroneous. Her second point asserts that by reason of the fact asserted by the first point of error there was abuse of discretion on the part of the trial court in the award of custody.

Of the foregoing the conclusions of law by the trial court were both to the effect that it would be in the best interest of the parties’ child, Ronny Paul, for his custody to be in the father, with reasonable visitation rights granted the mother. The findings of fact upon which the conclusions were founded were: emotional stability of the father and emotional instability of the mother; good moral character of the father and lack thereof by the mother; and a superior home environment and advantages incident to be obtained therein by the child through grant of custody to the father.

Any one of the fact findings would support the court’s ultimate conclusion that it would be to the best interest of Ronny Paul that his custody be granted to his father. All of the findings of fact were supported by the statement by the court of the facts proved upon trial and found by him as the fact finder in the case. We hold that none of the fact findings were so contrary to the greater weight and preponderance of the evidence as to be clearly erroneous; that there was no error in the legal conclusions thereupon founded; there was not an abuse of discretion by the court in the award of custody.

Judgment is affirmed.


author: EVANS, Justice.

text:
    L. S. HACKNEY, Appellant, v. O. E. BARNHART et al., Appellees.
    No. 16889.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 9, 1977.
    William E. Heitkamp, T. D. Smith, Houston, for appellant.
    Charles B. Spicer, Jr., Pasadena, for ap-pellees.
   EVANS, Justice.

The appellees, O. E. Barnhart and Ray Barnhart, brought this suit against appellant L. S. Hackney to recover damages for the appellant’s breach of an agreement to rescind an oral executory contract. After a nonjury trial, the trial court entered a judgment for the appellees. Its judgment will be affirmed.

The parties are in agreement on most of the facts as found by the trial court. The trial court found that parties had entered into an agreement on January 1, 1971, whereby Hackney, the owner of all of the outstanding stock of H & B Equipment Company, Inc., agreed to sell to the Barn-harts one-half of his stock ownership for a consideration of $25,000. It further found that this agreement had been reached between the parties as individuals, that the parties intended to be personally bound, and that pursuant to this agreement, the Barnharts delivered two checks totalling $25,000.00 in payment of the stipulated consideration.

The trial court further found that on May 24, 1971 the parties agreed to cancel and rescind the stock purchase agreement so as to restore themselves to their former positions, and that as part of this agreement, the Barnharts agreed to relinquish all claims to the stock of H & B Equipment Company, Inc. and Hackney agreed to pay the sum of $25,000 to the Barnharts within five days. It also found that the parties intended and regarded Hackney’s agreement to be binding upon him personally and individually. Based upon these findings the trial court entered judgment in favor of appellee for the sum of $17,000.00, representing the difference between the $25,-000.00 payment and the amount of $8,000.00 which had been paid and applied to the reduction of the debt.

In his first eight points of error, Hackney contends that the evidence is legally and factually insufficient to support the trial court’s findings of an agreement on his part to be individually liable for the repayment to the Barnharts of the sum of $25,000.00. Although Hackney does not dispute the making of the recision agreement, he argues that the evidence shows only an agreement on the part of H & B Equipment Company, Inc. to repay the sum in question.

There is testimony in the record which tends to support Hackney’s interpretation of the facts. He testified that when he told the Barnharts he would give them their money back, he meant that H & B Equipment Company, Inc. was going to pay the money, and that he understood this to be a corporate liability. However, there is evidence from which the trial court reasonably could have concluded that the agreement was to be Hackney’s personal obligation. Ray Barnhart testified that after a disagreement developed between the parties concerning the assets of H & B Equipment Company, Inc., Hackney suggested that they should perhaps “call it quits.” Barn-hart replied: “Maybe, to retain our friendship, that would be the best thing to do.” Hackney then stated: “I’ll have your money for you in five days.” Barnhart replied: “That’s fine. We’re not pushing it. We do need our money. We want to get out.”

It is also Hackney’s contention that the method of payment of the initial consideration for the corporate stock shows that the obligation to repay was a corporate responsibility. The record indicates that one of the two checks totalling $25,000.00 was made payable to H & B Repair Service and the other to H & B Repair Service & Supply Company. The payees of these checks were assumed names under which H '& B Equip-meiit Company, Inc. conducted its business. Mr. O. E. Barnhart testified that he issued the checks to the corporate identities because he had always paid the bills in that manner. He stated that he would have made the checks páyable to Hackney if he had been requested to do so.

Hackney’s own testimony shows that he regarded the initial stock purchase agreement as being a personal contract between himself and the Barnharts.

“Question: . . . you were to transfer to them fifty percent of the stock that you owned in the company for that $25,-000?
“Answer: Right. I was going to receive the $25,000 personally for my half of the stock. Yes, sir.
“Question: And the agreement you had with the Barnhart’s involved a stock transfer and not a-transaction between the Barnhart’s and H & B Equipment Company as a corporation. Is that not correct?
“Answer: That is correct.”

The evidence indicates that Hackney caused the sum of $8,000.00 to be paid in reduction of the $25,000.00 obligation. This payment was in part represented by Hackney’s personal assets and in part by checks drawn upon H & B Equipment Company, Inc.

It was for the trial court, to reconcile any conflicts in the testimony and to weigh and consider the evidence offered on behalf of each party. On the basis of the evidence presented, the trial court could properly have concluded that Hackney was personally and individually bound to pay the sum of $25,000.00 to the Barnharts, and its findings are not against the great weight and preponderance of the evidence.. The appellant’s first through eight points of error, therefore, are overruled.

In his ninth point of error Hackney contends the trial court erred in entering judgment for the Barnharts because the evidence showed that the cause of action belonged to a corporation, Barney’s, Inc: The evidence does show that the $25,000.00 payment was made by Barney’s Inc., which was a corporation solely owned by the Barnharts. However, the trial court found that the stock purchase agreement had been made between the parties as individuals, and its finding is, in this respect, unchallenged. Thus, the cause of action for the return of the money belonged to the Barnharts as individuals notwithstanding the fact that the source of the funds may have been the corporate entity. This point is overruled.

The trial court’s judgment is affirmed.


author: CHADICK, Chief Justice.

text:
    John Clayton REEVES, Carolyn Reeves, Aubrey Lynn Smith, Appellants, v. ARKANSAS-LOUISIANA GAS COMPANY, Appellee.
    No. 8466.
    Court of Civil Appeals of Texas, Texarkana.
    June 14, 1977.
    J. R. Cornelius, Jefferson, for appellants.
    Gaines Baldwin, Marshall, for appellee.
   CHADICK, Chief Justice.

This is an appeal from an order granting a temporary injunction. The judgment of the trial court is affirmed.

By deed dated July 31, 1930, E. C. La-tham and wife ostensibly granted Arkansas-Louisiana Pipeline Company a pipeline right-of-way on, over and through certain lands situated in the A. De los Santos Coy Survey in Marion County, Texas. The Reeves appellants and Arkansas-Louisiana Gas Company, respectively, became successors in title to the grantors and grantee in such deed. And by deed dated July 31, 1930, J. K. Grubbs and wife ostensibly granted Arkansas-Louisiana Pipeline Company a pipeline right-of-way on, over and through certain lands in the John A. McKinney Survey of Marion County, Texas. Appellant Aubrey Lynn Smith, and Arkansas-Louisiana Gas Company, respectively, became successors in title to the grantors and grantee in such deed. The cash consideration recited in the deed was paid to each set of grantors, together with a small sum for damages accruing under the terms of the deeds.

Pertinent to the issue in this case both grants had this language in common:

“. . .do hereby grant to the Arkansas Louisiana Pipeline Co., its successors or assigns, the right of way to lay, maintain, alter, repair, operate and remove pipe lines for the transportation of oil or gas, ... on, over and through certain lands situated in County of Marion, State of Texas, . . . Should more than one pipe line be laid under this grant at any time the same consideration shall be paid for each line so laid as was paid for the first line laid.” (Emphasis added.)

In reliance upon the deeds construction of a pipeline across the tracts belonging to the grantors was begun and completed without objection more than 45 years before this suit was instituted. The original line at trial time and for many years prior thereto was the sole source of supply and a part of the gas company’s gas distribution system serving the City of Linden, Texas.

Prior to institution of this suit, December 9, 1976, the gas company was engaged in replacing the original pipeline and laying a new line parallel with and approximately ten feet distant from the existing line. On or about December 9, 1976, the appellants interfered with and stopped the gas company’s new line construction work and refused the company access to its line on the appellants’ land. The gas company turned to a district court of Marion County for relief and obtained the temporary injunction order that is the subject of this appeal.

The conclusive issue in this appeal is whether the trial court abused its discretion in granting a temporary injunction to prevent appellants from interfering with the company’s construction of a new pipeline across appellants’ lands. Texas Foundries v. International Moulders & F. Wkrs., 151 Tex. 239, 248 S.W.2d 460 (1952); Oil Field Haulers Ass’n v. Railroad Commission, Tex., 381 S.W.2d 183 (1964). To show an abuse of discretion the record must disclose the gas company did not plead and offer evidence tending to prove a probable right to a permanent injunction and a probable injury that a temporary injunction would prevent. Oil Field Haulers Ass’n v. Railroad Commission, supra; Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953); Southwestern Greyhound Lines v. Railroad Com’n, 128 Tex. 560, 99 S.W.2d 263 (1936). The appellants undertake to now show an abuse of the trial court’s discretion on the basis that the grants from Latham and Grubbs contemplated that a single pipeline would be laid and that the grants did not authorize the company to lay a second line.

Right-of-way easement deeds are to be construed, when construction is necessary, as are other conveyances of land or interest in land. 21 Tex.Jur.2d, Easements, Sec. 14. Ascertainment of the intention of the parties, as intent is revealed by the document itself, is the dominant and controlling purpose in construction of a right-of-way deed. See last mentioned authority and Coastal States Crude Gathering Co. v. Cummings, 415 S.W.2d 240 (Tex.Civ.App. Waco 1967, writ ref’d n.r.e.). The emphasized language of the right-of-way deeds heretofore quoted shows that the parties contemplated and agreed more than one pipeline would or might be laid and expressly made provisions for such contingency by providing for payment of additional consideration for additional lines. Such provision is similar to multiple line easements discussed in Phillips Petroleum Company v. Lovell, 392 S.W.2d 748 (Tex.Civ.App. Amarillo 1965, writ ref’d n.r.e.); Williams v. Humble Pipe Line Company, 417 S.W.2d 453 (Tex.Civ.App. Houston 1967, no writ); 4 Summers Oil and Gas, Sec. 758, p. 353 (Supp.1977); 61 Am.Jur.2d, Pipelines, Sec. 31. See also Knox v. Pioneer Natural Gas Company, 321 S.W.2d 596 (Tex.Civ.App. El Paso 1959, writ ref’d n.r.e.). This being a multiple line easement distinguishes this case from single line easements discussed in Houston Pipe Line Company v. Dwyer, 374 S.W.2d 662 (Tex.1964); Onthank v. Lake Shore and Michigan Southern Railroad Co., 71 N.Y. 194 (1877); Winslow v. City of Vallejo, 148 Cal. 723, 84 P. 191 (1906).

Under the pleadings and the evidence presented by the record the trial judge was warranted in concluding that the company had a cause of action and had by proof demonstrated a probable right to a permanent injunction and a probable injury if a temporary injunction did not issue. The judgment of the lower court must be affirmed. It is so ordered.

CORNELIUS, J., not participating.


author: PHILLIPS, Chief Justice.

text:
    Rush McGINTY, Appellant, v. MODERN FILM EFFECTS, INC., Appellee.
    No. 12581.
    Court of Civil Appeals of Texas, Austin.
    June 15, 1977.
    Rehearing Denied July 6, 1977.
    Ruth B. Pennebaker, Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for appellant.
    Thomas H. Watkins, Watkins, Ledbetter & Hays, Austin, for appellee.
   PHILLIPS, Chief Justice.

Appellee, Modern Film Effects, Inc., sold merchandise on credit to U.F.I., doing business as United Film International. A guaranty agreement was executed by appellant, Rush McGinty, to guarantee any and all indebtedness of U.F.I. to appellee. Subsequently, appellee filed this suit in sworn account against U.F.I. for the balance due on the account, and joined appellant therein as guarantor. The case was tried to the court and judgment was rendered for ap-pellee, jointly and severally, against U.F.I. and appellant. Rush McGinty was the only defendant to appeal from this judgment. We affirm.

At trial, appellee introduced a sworn account as proof of U.F.I.’s indebtedness pursuant to Tex.R.Civ.P. 185. As U.F.I. had failed to appear or to answer at the trial, the court entered a default judgment against it. The court then entered the judgment complained of here against appellant.

Appellant contends that a sworn account cannot be used to prove a debt against one who is a stranger to the transaction, as it is hearsay as to the third party, citing cases.

We agree but the rule is not applicable under the circumstances of this case. Appellant requested no findings of fact or conclusions of law, so if there is evidence to support the judgment of the trial court on any theory of the case, the judgment of the trial court should be affirmed and every issue raised by the testimony must be resolved in support of the judgment. See Nichols v. Acers, cited in the footnote herein. Consequently, we presume that when the court charged appellant with U.F.I.’s debt on the guaranty, it based its decision on the judgment against U.F.I. that it had entered and not upon the sworn account itself.

In Sampson v. Apeo Oil Corp., 476 S.W.2d 430 (Tex.Civ.App.1972, no writ), the court set out three elements necessary to prove a cause of action against a guarantor such as appellant: first, that the guarantor had executed the guaranty agreement; second, that the guaranty agreement had not been terminated; and third, that the principal was indebted to the plaintiff in a certain amount that was due and unpaid.

In the case at bar, there is no dispute as to the first two requirements. Consequently, as there is sufficient evidence to support the implied finding by the court that the principal, U.F.I., was indebted to appellee, we affirm the judgment.

      . Sampson v. Apeo Oil Corp., 476 S.W.2d 430 (Tex.Civ.App.1972, no writ); Texas Co. v. Lee, 157 S.W.2d 628 (Tex.1941); Nichols v. Acers Co., 415 S.W.2d 683 (Tex.Civ.App.1967, writ ref. n. r. e.).


text:
    Suk Chu HITCHCOCK et al., Appellants, v. CITY OF KILLEEN, Appellee.
    No. 5040.
    Court of Civil Appeals of Texas, Eastland.
    June 16, 1977.
    Rehearing Denied July 7, 1977.

      Terral R. Smith, Austin, for appellants. J. Rush Milam III, City Atty., Killeen, for appellee.
   McCLOUD, Chief Justice.

This is an appeal from an order granting a temporary injunction. Defendants, Suk Chu Hitchcock, Michael Allan Burke, Individually and d/b/a the Playhouse, and the Game Room, Inc., were enjoined from presenting or showing or allowing to be presented or shown any form of entertainment at 211 East Avenue D, Killeen, Bell County, Texas, without first obtaining the proper zoning or permit for the property described above.

The court found that defendants operated a “theater” at 211 East Avenue D in Kil-leen; the property was zoned for B-5 General Business uses; a theater is allowed only in BT-1 Districts; defendants also failed to comply with the “Shows Licensing Ordinance”; and, defendants will in reasonable probability continue to violate these ordinances unless restrained.

Defendants argue that zoning ordinance BT-1 is void because the City of Killeen failed to provide proper public notice of the zoning ordinance prior to its adoption as required by Article lOlld, Tex.Rev.Civ. Stat. The City of Killeen contends defendants are bound by the judgment in Cause No. 62,433-C, City of Killeen v. J. Norman Wells, 146th District Court, Bell County, Texas, affirmed in Wells v. City of Killeen, 524 S.W.2d 735 (Tex.Civ.App., Beaumont 1975, writ ref. n.r.e.), which held the zoning ordinance under attack valid.

The property in the instant case, 211 East Avenue D, was the identical property involved in Wells. The same issues are involved in the instant suit as were involved in Wells. Only the named defendants are different. The defendants in Wells contended the zoning ordinance was void because of improper public notice. The defendants in the case at bar assert the same contentions.

The court in Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952) stated:

“. . . The granting or refusing of a temporary injunction is subject to a very different character of appellate review from the granting or refusing of a permanent injunction. The trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion ...”

In Sun Oil Company v. Whitaker, 424 S.W.2d 216 (Tex.Civ.App.1968), the court said:

“. . . To warrant issuance of the writ, an applicant is not required to establish that he will prevail on final trial; he needs only to plead a cause of action and to show a probable right on final trial to the relief he seeks and probable injury in the interim. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953); Southwestern Greyhound Lines, Inc. v. Railroad Commission of Texas, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235 (1936). To be entitled to the writ when the only relief sought on final trial is injunctive, the applicant must show a probable right on final hearing to a permanent injunction. Oil Field Haulers Ass’n v. Railroad Commission, 381 S.W.2d 183 (Tex.Sup.1964). A necessary corollary of the preceding rule is that in no event should the writ issue for the protection of an applicant who does not show a probable right on final trial to a permanent injunction

The issue before the court in Wells was the validity of Zoning Ordinance BT-1. The determination of this issue was of “general and public interest.” In Cochran County v. Boyd, 26 S.W.2d 364 (Tex.Civ.App., Amarillo 1930, writ ref.), the court announced the appropriate rule as follows:

“The general rule is that, in the absence of fraud or collusion, a judgment for or against a county or other municipality is binding and conclusive upon all residents, citizens, and taxpayers, in respect to the matters adjudicated which are of general and public interest, and that all other citizens and taxpayers similarly situated are virtually represented in the litigation and bound by the judgment
The reason for this rule is stated by the same authority on page 1029, as follows: ‘If this were not so, each citizen, and perhaps each citizen of each generation of citizens, would be at liberty to commence an action and to litigate the question for himself . .

See also Hovey v. Shepherd, 105 Tex. 237, 147 S.W. 224 (1912); Hodgkins v. Sansom, 135 S.W.2d 759 (Tex.Civ.App.—Fort Worth 1939, writ dism’d jdgmt cor); 64 A.L.R. 1262.

The judgment in Wells held that Zoning Ordinance BT-1 was valid. Defendants are bound by that adjudication.

Defendants rely upon Ex Parte Davis, 470 S.W.2d 647 (Tex.1971). The case is distinguishable. The court in Davis held that a person, not named as a party in an injunction order, could not, under the facts presented, be held in contempt for violating the order.

Injunctive relief is available to restrain violations of a zoning ordinance. Wells v. City of Killeen, supra. There is evidence that Suk Chu Hitchcock was dancing “totally nude” at the Playhouse Club on August 26,1976; that the Playhouse Club is located at 211 East Avenue D in Killeen; and that Michael Burke was on that date acting as manager of the Playhouse Club. There is some evidence that Suk Chu Hitchcock and Michael Burke were violating the zoning ordinances in question. However, there is no evidence that defendant, the Game Room, Inc., violated the ordinances. Therefore, the injunction as to that defendant should be dissolved. Millwrights Local Union No. 2484 v. Rust Engineering Co., 433 S.W.2d 683 (Tex.1968).

The temporary injunction as to defendants, Suk Chu Hitchcock and Michael Allan Burke, Individually and d/b/a the Playhouse, is affirmed. The temporary injunction as to defendant, the Game Room, Inc., is dissolved.

      . Article 101 Id provides:
      “The legislative body of such municipality shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established, and enforced, and from time to time amended, supplemented, or changed. However, no such regulation, restriction, or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least 15 days’ notice of the time and place of such hearing shall be published in an official paper, or a paper of general circulation, in such municipality. Acts 1927, 40th Leg., p. 424, ch. 283, § 4.”


author: PEDEN, Justice.

text:
    Barnett W. GARRISON, Relator, v. Honorable Herman W. MEAD, Respondent.
    No. 16955.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 30, 1977.
    Schleider & Ewing, Ben H. Schleider, Jr., Harry G. Dippel, Paul S. Francis, Houston, for relator.
    Joe G. Resweber, County Atty., Billy E. Lee, Asst. County Atty., Houston, for respondent.
    Liddell, Sapp, Zivley & Brown, Willis Witt, Conway L. Wallace, Lackshin & Nathan, Bernus Wm. Fischman, Houston, for Rita J. Wilder as amicus curiae.
   PEDEN, Justice.

Relator brings this original proceeding to terminate a pending divorce suit in view of the death of the other party to the divorce, Candace Mossier Garrison. He seeks a writ of mandamus to compel dismissal of the divorce or a writ of prohibition to prevent further proceedings other than dismissal.

On December 3, 1975, the trial judge signed an order granting a divorce to Mrs. Garrison but reciting that he had appointed a master in chancery to receive evidence and report on the property owned by the parties; the decree also stated that the court was not determining such rights at that time but was retaining “jurisdiction of the property rights of the parties until the entry of a final decree of divorce in this cause.” The master later filed a suggestion of death of Candace Mossier Garrison. Although the trial judge does not appear to have refused to dismiss this cause, he has stated that he would do nothing until this appellate court acts on the petitions before us in this proceeding.

An order granting a divorce but leaving in abeyance the disposition of the parties' property rights is an interlocutory decree. Restelle v. Williford, 364 S.W.2d 444 (Tex.Civ.App.1963, writ ref., n. r. e.).

The death of a party before judgment in a divorce case abates the action absolutely and automatically abates the court’s incidental powers concerning property rights. Parr v. White, 543 S.W.2d 445, 448 (Tex.Civ.App.1976, writ ref., n. r. e.); Ex parte Cahill, 286 S.W.2d 210 (Tex.Civ.App.1955, no writ).

In Dunn v. Dunn, 439 S.W.2d 830 (Tex.1969), the husband died after the trial judge’s oral pronouncement of divorce but before written entry of a decree. The primary issue on appeal turned on whether the trial court had lost jurisdiction of the judgment at the husband’s death. After holding that a written judgment signed by the trial judge was not a prerequisite to finality of the judgment, the Supreme Court then examined the trial judge’s oral pronouncement and concluded that since it fully determined the parties’ property rights, it was a final judgment, not merely an interlocutory one.

When the jurisdiction of the divorce court is invoked by the pleadings of either spouse, the court must decree a division of the property. Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299, 302 (1960). Under Article 3.63 of the Family Code, the trial court may not sever the property division from the divorce action. Reed v. Williams, 545 S.W.2d 33 (Tex.Civ.App.1976, no writ); Angerstein v. Angerstein, 389 S.W.2d 519 (Tex.Civ.App.1965, no writ); Adam v. Stewart, 552 S.W.2d 536, 1977.

It does not appear from the limited record before us in our case that before Mrs. Garrison died the trial court had rendered a final judgment, either by oral pronouncement or by written entry.

We believe, however, that we lack jurisdiction to grant the relief sought by the relator. Our appellate jurisdiction has not been invoked. The authority of courts of civil appeals to issue coercive writs is limited to that granted in Articles 1823 and 1824 of Vernon’s Texas Civil Statutes: i. e., to issue writs necessary to enforce their jurisdiction or to compel a district or county court to proceed to trial and judgment in a cause. Johnson v. Court of Civil Appeals, 162 Tex. 613, 350 S.W.2d 330 (1961). Courts of civil appeals lack authority to issue writs of mandamus ordering dismissal of a cause for want of jurisdiction. Trigo v. Laughlin, 307 S.W.2d 293, 294 (Tex.Civ.App.1957, no writ); accord, Parr v. Carrillo, 526 S.W.2d 250, 251 (Tex.Civ.App.1975, no writ).

Nor do we have authority to issue a writ of prohibition to prevent respondent from proceeding with the pending suit. Courts of civil appeals have not been given supervisory control over district and county courts and are not authorized, in an original proceeding, to forbid a district judge from exercising further jurisdiction in a pending cause. Texas Employers’ Ins. Ass’n v. Kirby, 150 S.W.2d 123, 124 (Tex.Civ.App.), approved, 137 Tex. 106, 152 S.W.2d 1073 (1941); Guillory v. Davis, 527 S.W.2d 465, 466 (Tex.Civ.App.1975, no writ).

The petitions are dismissed for want of jurisdiction.


author: JONES, Justice.

text:
    Robert D. SYKES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    June 10, 1977.
    Jack Emory Farley, Public Defender, Larry H. Marshall, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Carl T. Miller, Asst. Atty. Gen., Frankfort, for ap-pellee.
   JONES, Justice.

The litigation that prompts this appeal arises from a sordid drama of events that led to the brutal murder of Gladys Deskins at her home on Johns Creek in Pike County, Kentucky, on the night of July 11, 1971.

Robert Sykes appeals from a judgment sentencing him to life imprisonment pursuant to a jury verdict finding him guilty of conspiring with Boone Deskins, Willard Christian and William Eugene Thompson to murder Gladys Deskins.

In support of a plea for reversal of the judgment, Sykes asserts eleven assignments of error. A number of his points of error either merge into or overlap others. Sykes presents his contentions in an 81-page brief and a 17-page reply brief. This court will address only those issues which the court regards as warranting discussion. To do more would equate the length of this opinion with that of Sykes’ brief and reply brief.

In order to properly dispose of the questions presented, the court deems it appropriate to detail pertinent facts and some of the procedural background prior to the commencement of Sykes’ trial.

Boone Deskins hired “Woody” Christian to kill his estranged wife Gladys. Deskins promised Christian $7,000.00 to kill her. Christian was squeamish, and expressed reluctance to commit the murder. He didn’t mind to burn buildings for Deskins, but the commission of murder was a “horse of another color.” However, Christian engaged the services of Sykes and Thompson to aid him in murder for hire. He promised to divide the $7,000.00 with Sykes and Thompson. Less than a year after Gladys’ murder, Christian, while a federal prisoner in Terre Haute, Indiana, had a troubled conscience. He confessed his part in the crime. He also told the authorities in minute detail the events prior to and leading up to the murder. Christian informed the authorities the part that each of his coconspirators played in the drama.

As a result of his confession, Christian, Deskins, Thompson and Sykes were jointly indicted for the offense of willful murder. KRS 435.010. (Now KRS 507.020). The indictment alleged that Sykes aided, abetted and conspired with his coindictees in murdering Gladys Deskins by stabbing her with a knife and shooting her with a shotgun.

Boone Deskins was tried first and convicted. Next, Thompson was tried and convicted. Each was sentenced to life imprisonment in conformity with separate jury verdicts. The principal witness in each of the cases was Christian. His testimony was sufficiently corroborated in the trial which resulted in the conviction of Boone Deskins which conviction was affirmed by this court. See Deskins v. Commonwealth, Ky., 512 S.W.2d 520 (1974).

On November 11,1974, Thompson filed in this court a notice and motion for a belated appeal. The court denied that motion.

On July 17, 1972, Sykes waived formal arraignment and entered a plea of not guilty. His trial was continued to the following October term. After the Commonwealth elected to try Deskins first, the trial court on January 26, 1973, reassigned Sykes’ trial to March 5, 1973. Sykes’ trial was continued again after the Commonwealth elected to try Thompson.

On October 12, 1973, Sykes moved the trial court to permit his attorney, Fred B. Redwine, to withdraw from the case. The trial court sustained that motion and appointed Gary Johnson as attorney for Sykes. Then Sykes moved to dismiss Johnson. On February 27, 1974, the trial court overruled that motion. He then appointed Lee Ledford as co-counsel.

On March 14, 1974, Sykes moved for a change of venue “from Pike County to another suitable neighboring county.”

On March 25, 1974, the trial court overruled Sykes’ motion to dismiss the indictment because he had been denied a speedy trial. Sykes renewed his motion for change of venue on May 28, 1974. He supported that motion with affidavits of 54 persons. The Pike Circuit Court granted the motion and transferred Sykes’ case to the Floyd Circuit Court.

Sykes moved for a continuance on September 10, 1974, to enable him sufficient time to arrange for the attendance of witnesses located in various federal prisons. At this point the trial court appointed Dan Rowland to assist in Sykes’ defense. In a rather unique proceeding the trial court conducted a closed hearing on the relevance and materiality of the evidence of Sykes’ proposed witnesses. Representatives of the Commonwealth were excluded and the record of the hearing “sealed.” The trial court directed the Commonwealth to produce all but four of the federal prisoners named by Sykes as witnesses.

Late in December 1974, the trial court on motion of the Commonwealth’s Attorney, amended the order directing the Commonwealth to produce Sykes’ witnesses. He did however, order the testimony of the federal prisoners be taken by depositions.

Prior to commencement of Sykes’ trial, a hearing was held in chambers. Sykes moved that Johnson and Rowland be discharged as counsel. He contended that Johnson and Rowland were inexperienced in criminal trials. His attitude can best be reflected when he told the trial judge:

“I am ready to let the court, your honor, proceed without them and without me. I will'be no party to this trial.”
The Court — “Oh, yes, you will too! ”
Sykes — “Yes, your honor, I will be here, but I will be moot and I will let you try the case and will have no part in it, because my witnesses are not here, the Commonwealth has not got my witnesses here at this time.”

The trial court told Sykes he would permit him to question the witnesses but Johnson and Rowland would be present to assist him.

Sykes contends that he was denied compulsory process for obtaining material witnesses. He asserts also that the trial court erred in ordering the testimony of his witnesses be taken by depositions. For reasons never disclosed, Sykes wanted “flesh and blood” witnesses brought from federal prisons located in Atlanta, Georgia; El Reno, Oklahoma; Oxford, Wisconsin and Terre Haute, Indiana. The Commonwealth is under no duty to produce witnesses for a defendant in a criminal case. The cases cited by Sykes on the right of an accused to present witnesses in his defense say nothing about the responsibility of the prosecution to secure such witnesses or to pay the expense involved. The rules of criminal procedure fail to support Sykes’ contention. RCr 7.02 provides:

“Upon the request of the attorney for the Commonwealth or the defendant or his attorney, the clerk of the court shall issue subpoenas.”

RCr 7.04 provides that the rules of civil procedure shall apply to and govern the coercing of the attendance of witnesses.

The trial court ordered the Commonwealth to secure at its expense the testimony of the witnesses in federal prisons by deposition. CR 32.01(3). He “ordered that the expense of one attorney for Sykes be paid by the Commonwealth.” Thereafter, an attorney for Sykes and an attorney for the Commonwealth went to Atlanta for the purpose of taking depositions of three witnesses. At the time, Sykes was an inmate of the same federal prison as were the witnesses. Sykes refused to allow the depositions to be taken. The witnesses refused to give depositions. With Sykes’ attitude in this respect, this court is of the opinion that the claim he was denied any constitutional right has no merit.

The next assignment of error is that the trial court’s failure to appoint other counsel constitutes a denial of Sykes’ right to counsel. This claim is refuted by the record. Johnson and Rowland were capable attorneys. They worked diligently in Sykes’ behalf. They did so without his cooperation. If Sykes had desired to forego the benefit of counsel he would have been entitled to do so. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Sykes, however wanted counsel. This court has held that it was not an abuse of discretion for a trial court to order a trial to proceed although the defendant and his attorney were unhappy with each other. House v. Commonwealth, Ky., 487 S.W.2d 917 (1972). The record of the trial demonstrates that the trial judge did not abuse his discretion in requiring the trial to proceed with Rowland and Johnson as attorneys for Sykes.

Sykes argues that the testimony of Christian, an accomplice, was not sufficiently corroborated by other evidence. Christian testified that he, Sykes and Thompson left for Gladys Deskins’ house around 10:00 p. m., July 11, 1971. Sykes drove the car. He let Christian and Thompson out near Johns Creek High School. After Gladys’ murder, Sykes came back and picked up Christian and Thompson. Christian testified that Sykes drove to Pikeville to the Pizza Inn to establish an alibi. Thereafter, Christian divided the money with Sykes and Thompson.

On the night of the murder Sykes was seen in the company of Christian and Thompson. Assistant Chief of Police, Robert Burgess, saw the three together between 10 and 11 o’clock on the night of the murder. Patrolman Cal Runyan also saw the three together. Reepers Branham testified that he saw Sykes driving with Thompson and Christian in the car between 10:30 and 11:30 the night of the murder, July 11, 1971.

Detective C. D. Potter testified that when Christin confessed his part in the murder, he told Potter where to find the .410 gauge shotgun used in the murder. This court has compared the testimony of Christian with that given by him in Deskins, supra. His testimony has not varied. It is as constant as the polestar. It has the ring of truth. His testimony that Sykes drove the automobile to and from the crime and transported him and Thompson to the Johns Creek School never varied. Sykes also received ½ of the amount paid Christian for the murder.

Another more direct corroboration is found in the testimony of Walter Hammer-shoy. He testified that on an auto trip to Virginia, “Sykes said he’d done it, and said something about a certain amount of money he had received and I told him to shut up that I didn’t want to hear it.” In response to a question, Hammershoy testified as follows:

“Q. 6. Walter, have you had in the past occasion to travel around with or run around with Robert Sykes?
A. Yes, I had quite often.
Q. 7. Are you acquainted with the circumstances — the general circumstances and the time surrounding the death of Gladys Deskins?
A. I wasn’t in Pike County at that time.
Q. 8. Have you heard about it?
A. I have heard about it.
Q. 9. And heard it discussed since then?
A. Yes.
Q. 10. At any time, any place, have you heard Robert Sykes make any statement about his involvement in that crime?
A. I did — in Virginia.
Q. 11. Where abouts, I just want you to explain where you were and who was with you and what was said.
A. Enroute from Grundy, Virginia to Haysi, I guess, and we were drinking a little bit and Robert had earlier convinced me he had nothing to do with it and then Sykes said he had done it and said something about a certain amount of money he had received and I told him to shut up, that I didn’t want to hear it.”

The corroborative evidence is more than ample for the case to have been submitted to the jury. The evidence was sufficient to sustain the conviction.

Sykes complains that the photographs filed by the Commonwealth as exhibits were inflammatory. He contends that the court erred in admitting the photographs. There is simply no merit to this contention. All of the photographs but two complained of as being inflammatory have already been ruled upon by this court in Deskins v. Commonwealth, supra. The court said in that case:

“All the photographs were taken at the scene of the crime and revealed the nature of the wounds and the position of the decedent at the time she was found by the officers. In this advanced technological age of television, movies and news media those persons selected as jurors are able to view a picture of a victim of crime without prejudice to the defendant.” Napier v. Commonwealth, Ky., 426 S.W.2d 121 (1968).
“We hold that the photographs were competent evidence of the fact that murder had been committed and that Gladys Des-kins had died as a result of the gunshot wound.”

The two photographs taken at the funeral home are not gruesome. One of them is a picture of Gladys’ hand showing a knife wound. The other is a picture of Gladys’ back showing multiple stab wounds. These pictures, along with pictures taken at the scene, constituted visual evidence on material issues and were properly admitted.

This court has reviewed all of the other assignments of error. None of them have merit. Some of them are not preserved for appellate review. This court is of the opinion that Sykes had more than a “tolerably fair trial.” The appointed attorneys gave an outstanding performance in representing Sykes. The trial court is to be commended for his patience. There were many in-chambers hearings. In each instance Sykes took over his own defense, was rude to the trial court, and insolent toward his attorneys. The record is replete with instances of Sykes’ contempt for the court and for counsel who ably assisted him.

This court is of the opinion that the judgment should be and it is affirmed.

All concur.


author: STERNBERG, Justice.

text:
    Steve BANAHAN, Property Valuation Administrator of Fayette County, Kentucky, Appellant, v. PRESBYTERIAN HOUSING CORPORATION et al., Appellees. Steve BANAHAN, Property Valuation Administrator of Fayette County, Kentucky, Appellant, v. EMERSON CENTER, INC., et al., Appellees.
    Supreme Court of Kentucky.
    June 10, 1977.
    Glenn McDonald, Louisville, William S. Riley, Asst. Atty. Gen., Kentucky Dept, of Revenue, Frankfort, for appellant.
    Joseph B. Murphy, Angus W. McDonald, McDonald, Alford & Roszell, Lexington, for appellees.
    William P. Friedlander, Louisville, amicus curiae.
   STERNBERG, Justice.

These two appeals present a common issue and will be disposed of in one opinion. The issue is whether the appellees are exempt from ad valorem taxation, pursuant to Section 170 of the Kentucky Constitution, as institutions of purely public charity. The trial judge was of the opinion that the facts of these cases entitled appellees to the constitutional exemption from ad valorem taxes. We concur.

Both the Presbyterian Housing Corporation and the Emerson Center, Inc., were organized as nonprofit corporations, pursuant to the provisions of Chapter KRS 273. Their stated purposes are:

Presbyterian Housing Corporation
“a. To provide, on a non-profit basis, housing for low and moderate income families and families displaced from Urban Renewal Areas, or as a result of governmental action, or as a result of a major disaster, where no adequate housing exists for such groups, pursuant to Section 231(d)(3) and Section 236 of the National Housing Act, as amended. Such housing may include facilities for the elderly and handicapped.
b. The corporation is irrevocably dedicated to and operated exclusively for nonprofit purposes; and no part of the income or assets of the corporation shall be distributed to, nor inure to the benefit of, any individual.”
******
“Under Article 3 of the Articles of Incorporation PHC is empowered to do the following:
******
c. To do and perform all acts reasonably necessary to accomplish the purposes of the corporation, including the execution of a regulatory agreement with the secretary of Housing and Urban Development, acting by and through the Federal Housing Commissioner, and of such other instruments and undertakings as may be necessary to enable the corporation to secure the benefits of financing with the assistance of mortgage insurance under the provisions of the National Housing Act. Such Regulatory Agreement and other instruments and undertakings shall remain binding upon the corporation, its successors and assigns, so long as a mortgage on the corporation’s property is insured or held by the secretary of Housing and Urban Development.
d.In the event of the dissolution of the corporation or the winding up of its affairs, or other liquidation of its assets, the corporation’s property shall not be conveyed to any organization created or operated for profit or to any individual for less than the fair market value of such property, and all assets remaining after the payment of the corporation’s debts shall be conveyed or distributed only to an organization or organizations created and operated for non-profit purposes similar to those of this Corporation; Provided, however, that the Corporation shall at all times have the power to convey any or all of its property to the Secretary of Housing and Urban Development or his nominee.”
******
“Article 5 of the Articles of Incorporation provides that a majority of the directors of the Corporation must at all times be members of a Presbyterian Church and that membership in the Corporation shall be broadly representative of community interest and professional experience but a majority of the members shall at all times be members of the Presbyterian Church. The affairs of the Corporation are managed by a Board of Directors who serve without compensation.
Article 9 of the Articles of Incorporation provides that so long as the mortgage on the Corporation’s property is insured or held by the Secretary of Housing and Urban Development, the Articles of Incorporation shall not be amended without the prior written approval of the Secretary of Housing and Urban Development.”
Emerson Center, Inc.
“(a) To provide for lower income elderly or handicapped families and persons on a nonprofit below cost basis rental housing and related facilities and services specially designed to meet the physical, social and psychological needs of the aged or handicapped, and contribute to their health, security, happiness, and usefulness in longer living. Lower income elderly persons and families displaced from urban areas or as a result of governmental action shall be given priority where no adequate housing exists for such groups, pursuant to Section 236 of the National Housing Act, as amended.
(b) The corporation is irrevocably dedicated to and operated exclusively for, nonprofit purposes; and no part of the income or assets of the corporation shall be distributed to, nor inure to the benefit of, any individual.”
******
“Article III contains the following provision:
******
“(d) * * * In the event of dissolution winding up, or other liquidation of the assets of this corporation, its assets shall be distributed to- nonprofit and charitable corporations or institutions as shall qualify for exemption under Section 501(c)(3) of the IRS Code of 1954 as may be designated by the trustees to be used for purposes similar to those of this corporation. Provided, however, that the corporation shall at all times have the power to convey any or all of its property to the Secretary of Housing and Urban Development or his nominee.”

Each of the appellees is the owner of a multiple-unit apartment complex in Lexington, Kentucky. The construction was financed pursuant to Section 236 of the National Housing Act. The rent is established by joint action of the federal agency and the appellees, at a rate which is much less than the going charge for similar facilities. In fixing the rent rate, no consideration was given to the probability of the imposition of ad valorem taxes. Rentals are fixed at a rate that will provide an income sufficient to pay the operating costs, including interest on the unpaid balance due on the construction loan. To be eligible for a tenancy in either of the projects, a person must be at least sixty-two years of age or physically handicapped, have an income within an established maximum, execute a written lease, and pay the rent regularly (or be evicted).

The 144 apartments owned by the Presbyterian Housing Corporation are known as Amberly Place and consist of one, two, and three-bedroom apartments, which rent for $84, $95, and $102.84, respectively per month. Of the 178 apartments owned by Emerson Center, about 60 are one-bedroom and the remainder are efficiency apartments that rent for $120 and $89, respectively, per month. ■

Appellant is critical of the fact that the appellees, as they make the mortgage payment of principal and interest each month, are accumulating a larger equity in the buildings and in due time the mortgages will be fully paid and the property will be free of encumbrances. There is no obligation on a nonprofit corporation to operate under the cloud of a mortgage. Hopefully, the mortgages will be, in due time, fully paid and the rents can be adjusted accordingly.

The design and purpose of the subject projects are to provide housing and related facilities for the elderly and the handicapped persons so that they may enjoy living in a suitable environment. ■ Even though there may be, from time to time, some persons living in the project who are not entitled to this benefit, the economic and humanitarian value of the whole project cannot be condemned by a few imposters.

Section 170 of the Kentucky Constitution provides in part that, “There shall be exempt from taxation * * * institutions of purely public charity * * *.” The issue presented in not new nor are the arguments novel.

The Kentucky Department of Revenue seeks to add both of these apartment projects, having a total taxable value in excess of $2 million, to the tax rolls. Ap-pellees vigorously resist.

The landmark case from which our present guidelines are espoused is Trustees of Kentucky Female Orphan School v. City of Louisville, 100 Ky. 470, 36 S.W. 921, 19 K.L.R. 1091, 40 L.R.A. 119 (1896). Therein, this court held that the school was entitled to the exemption and that the exemption applied to income-producing property where the income was used for the charitable purpose for which the institution was organized. See also 37 A.L.R.3d 1191.

We must bear in mind that, “It is a settled principle that taxation is the rule and exemption the exception, and immunity from sharing the common burden is allowed only to those who perform duties which the state itself is obligated to discharge. * * * ” Layman Foundation v. City of Louisville, et al, 232 Ky. 259, 22 S.W.2d 622 (1929). In other words, exemption from taxation is not favored in law, and claims for exemption are to be strictly construed in the public’s favor, but such construction must be a reasonable one. This court, in Layman Foundation, supra, went on to say that since the objects of the foundation’s charity were not the people of Kentucky and no part of Kentucky’s duty was discharged by the foundation, the constitutional exemption from ad valorem taxes was not available to it.

Section 170 of the Kentucky Constitution is meant to foster and encourage benevolences to the Commonwealth of Kentucky and its people, not the showering of an institution’s charity on other states or the inhabitants of other states. Also see City of Louisville v. Presbyterian Orphans Home Society of Louisville, 299 Ky. 566, 186 S.W.2d 194 (1945).

In Iroquois Post No. 229 v. City of Louisville, Ky., 309 S.W.2d 353 (1958), this court again considered the subject question. We found that the Iroquois Post was not entitled to the constitutional exemption because its “ * * * principal activities centered around promoting the interests and gratifying the wishes of its own membership. The dispensing of charity appears to be an incidental portion of its program.” In the course of the opinion, we said:

“Two basic conditions must be established in order to warrant an exemption from the payment of taxes. First, the institution must itself be a charity and the income from its property must be used to further its charitable purpose; secondly, the property must be employed for a purely charitable purpose. * * ”

In Commonwealth of Kentucky v. Grand Lodge of Kentucky, Ky., 459 S.W.2d 601 (1970), the Commonwealth, as here, construed the Iroquois Post case to mean that the property must be employed directly in charitable work. We renounced such a narrow construction and, in doing so, said:

“The appellants rely upon language in Iroquois Post No. 229, American Legion v. City of Louisville, Ky., 309 S.W.2d 353, to the effect that, to achieve tax exemption, it is not enough that the institution itself be a charity and use its income to further its charitable purposes, but in addition ‘The property must be employed for a purely charitable purpose.’ The appellants interpret this as meaning that the property must be employed directly in charitable work. We think this is a misinterpretation, and that it is sufficient that the ultimate effect of the use of the property is to accomplish the charitable purposes of the institution. That this is so is illustrated by the holding that income-producing property of a charitable institution is exempt from taxation. See City of Louisville v. Presbyterian Orphans Home Society, 299 Ky. 566, 186 S.W.2d 194. And it is made crystal clear by the statement in the Iroquois Post case * * * that for a building to be exempt, charity must actually be dispensed there or it must provide ‘necessary quarters for an organization whose prime aims and functions * * * (are) of an actively charitable nature.’ ”

We recently had occasion to again reconsider the subject issue in Commonwealth ex rel Luckett v. Isaac W. Bernheim Founda tion, Inc., Ky., 505 S.W.2d 762 (1974). In manifesting our philosophy on this issue, we said:

“We do not deem it important that the Foundation has not carried out all of its stated purposes. What is more important is that all of the activities of the Foundation are of a charitable nature.
No case has been called to our attention which requires that a charity have as its objective the fulfillment of basic human needs for food, clothing and shelter to qualify as a charity for purposes of tax exemption under Section 170 of the Constitution.
We are mindful that tax exemption deprives the treasury of revenue which must be replenished from other sources and consequently all claims for tax exemptions should be carefully scrutinized. We do not propose to allow the perpetuation of individual idiosyncrasies in a tax-exempt status under the guise of charity. Nevertheless, we feel that charity is broader than relief to the needy poor and includes activities which reasonably better the condition of mankind. District of Columbia v. Friendship House Association, 91 U.S.App.D.C. 137, 198 F.2d 530 (1952).”

It can hardly be said that the purposes for which the Presbyterian Housing Corporation and the Emerson Center exist are not charitable. Their Articles of Incorporation declare that their purposes are, among other things, (1) to operate without distribution of any of its income or assets to members, directors, or officers; (2) to provide housing to low and moderate income families of elderly or handicapped persons; and (3) to cooperate with the Federal Housing Authority.

The underlying purpose of the Federal Housing Law, as we understand it, is slum clearance, public safety, public health, and the prevention of crime and juvenile delinquency. With these purposes, the ap-pellees are authorized to cooperate. Hopefully, their efforts may bring forth a reduction in crime and good housing for senior citizens and the handicapped, all to the benefit of the people of Kentucky and the Commonwealth at large.

The elderly are now and long have been one of the prime concerns of this Commonwealth. The Kentucky Commission on Aging (KRS 216.620) and the Public Assistance and Medical Assistance programs of the State Department for Human Resources manifest this continuing concern.

The appellees have demonstrated that each is a charitable corporation. Their total income is used solely to continue the operation of the project and the low-cost housing program. The property which is sought to be subjected to the ad valorem taxes is employed for a purely charitable purpose.

The judgment is affirmed.

All concur.