author: HOGAN, Judge.

text:
    In the Matter of the ESTATE OF E. E. MAXEY, Deceased. Appeal of Enoch Ray MAXEY.
    No. 10827.
    Missouri Court of Appeals, Southern District, Division Three.
    Aug. 1, 1979.

      Ted M. Henson, Jr., George B. Scott, Jr., Scott & Henson, Poplar Bluff, for appellant.
    L. Joe Scott, Daniel T. Moore, Poplar Bluff, for respondent.
   HOGAN, Judge.

This appeal is taken from an order of the Circuit Court of Butler County dismissing the appeal of Enoch Ray Maxey from an order of the Probate Court of Butler County. The appeal reached this court by the following route: E. E. Maxey died intestate on April 19, 1976; he left surviving a widow, Edna, and two sons, Erney, Jr., and Enoch Ray. Letters of Administration were issued to Edna Maxey and before a proposed final settlement was filed, Edna applied for her allowance of exempt property, § 474.250, RSMo 1978, V.A.M.S., and for a one year support allowance as provided by § 474.260.1.

The application for delivery of exempt property and for one year’s allowance read, in material part:

“3. The surviving spouse is entitled under Section 474.260 . . to an allowance for maintenance for a period of one year after the death of the decedent to be paid in money in a lump sum and . the reasonable amount of such allowance, taking into consideration the previous standard of living of the surviving spouse and the condition of the estate of the decedent, is $9,000.00.
4. An additional allowance in the sum of $7,000.00 should be made for the maintenance, during the period of one year, of the following named unmarried minor children of the decedent to-wit: Enoch Ray Maxey.”

Upon notice and after a hearing, the probate court found that a just and proper allowance to the surviving spouse for one year’s support was $7,200. The additional allowance for Enoch Ray’s maintenance was denied. Enoch Ray appealed to the circuit court, which dismissed the appeal. The record before us is wholly devoid of any order, docket entry or suggestion why the circuit court dismissed the appeal; consequently, our review is limited to considering whether the dismissal was proper. Rippe v. Sutter, 292 S.W.2d 86, 88[2] (Mo.1956). As demonstrated by that part of the application quoted, and by Enoch Ray’s appeal affidavit, the action complained of is the probate court’s denial of a separate, distinct allowance to Enoch Ray as a surviving minor child; the complaint is not that the allowance should have been divided. The dispositive question on appeal is, therefore, whether § 474.260.1 contemplates separate and discrete allowances to the surviving spouse and the unmarried minor children.

Section 474.260 was enacted in 1955 as part of a general revision of our probate law. Laws of Mo.1955, p. 385, § 135. It was amended in 1957, 1965 and 1971. Looking over the history of §§ 474.-260 and 474.300, one cannot escape the thought that the amendments to §§ 474.260 and 474.300 represented attempts by our General Assembly to tailor the one year’s support allowance to the requirements of the federal estate tax statutes, see Phelps v. Bookwalter, 210 F.Supp. 801 (D.C.Mo.1962), aff’d 325 F.2d 186 (8th Cir. 1964), but we set aside such speculation. Our question is whether present § 474.260 contemplates separate allowances to the surviving spouse and minor children. We are remitted to general principles of statutory construction to ascertain the meaning of the statute. In this case, we see no reason why the “plain meaning” rule should not be followed. We bear in mind that the plain meaning rule, properly stated, is something more than a rule of literal construction. Statutory words and phrases should be construed according to everyday rules of grammar and common usage, but the purpose of the statute, considered historically and in context, must also be taken into account. Otherwise, the plain meaning rule states a mere tautology. See, e. g., Artophone Corp. v. Coale, 345 Mo. 344, 353, 133 S.W.2d 343, 347[3][4] (1939).

Our holding is best understood if the material parts of §§ 474.260 and 474.300, as originally enacted and as they read at the time of trial, are apposed. Section 474.260, as originally enacted, read: (emphasis ours)

“ . . . the surviving spouse and unmarried minor children . . . shall be entitled to a reasonable allowance in money ... for their maintenance during the period of one year after the death of the spouse, . . . taking into account the condition of the estate of the deceased spouse. The allowance so ordered may be made payable in one payment or in periodic installments, and shall be made payable to the surviving spouse, if living, for the use of such surviving spouse and the minor children ; . . . but in case any minor child is not living with the surviving spouse, the court may make such division of the allowance for maintenance as it deems just and equitable. ...”

As amended, and as it stood at the time of trial, § 474.260.1 read:

“ . . . the surviving spouse is entitled to a reasonable allowance in money . for his maintenance during the period of one year after the death of the spouse . . .. The allowance so ordered shall be made payable to the surviving spouse, unless the court finds that it would be just and equitable to make a division . . . between the surviving spouse and the unmarried minor children. If there is no surviving spouse, the allowance shall be made to the unmarried minor children.” (Our emphasis).

Section 474.300, as originally enacted, Laws of Mo.1955, p. 385, § 138A, read: (emphasis ours)

“When a surviving spouse dies, or if an unmarried minor child dies, marries or comes of age no allowance shall be made under section [474.260] for his maintenance for any period after such death, marriage or coming of age.”

Present § 474.300, reads: (emphasis ours)

“Death of a surviving spouse within the one year period for which the allowance is provided under section 474.260, for his maintenance, shall not affect the right or the surviving spouse to the allowance of the ordering thereof by the court. If an unmarried minor child dies, marries or comes of age, no allowance shall be made under section 474.260 for his maintenance for any period [thereafter] . . ”

For many years, Missouri had a “widow’s allowance” statute which smacked strongly of the early 19th century. In the 1929 revision of the statutes, the antecedents of our one year support statute are found in two sections, RSMo 1929, §§ 106 and 107. Section 106 provided that a surviving spouse should be allowed certain items of personalty as his absolute property, including:

“ . . . all grain, meat, vegetables, groceries, and other provisions on hand and provided and necessary for the sustenance of the [surviving spouse] and family for twelve months . . ”

Section 107, RSMo 1929, further implemented the “grain, meat [and] vegetables” part of § 106 as follows:

“If the grain, meat, or other provisions allowed [the surviving spouse] in the preceding section shall not be on hand at the time of the taking of the inventory, the court shall make a reasonable appropriation out of the personal assets of the estate to supply such deficiency .

While these statutes in terms read that the allowance is for the surviving spouse and family, they were interpreted as providing an allowance which vested in the surviving spouse as his or her absolute property, free from the claims of creditors or distributees or other beneficiaries of the estate. See: Monahan v. Monahan’s Estate, 232 Mo.App. 91, 95-97, 89 S.W.2d 153, 155 — 156[1] (1936). In 1933, the language of the one year support allowance was changed to read, Laws of Mo.1933, p. 164:

“ . and such sums of money in exclusion of all debts, claims, charges, legacies, and bequests, as the court may deem reasonable for the proper support of the said [surviving spouse], and the minor children under the age of eighteen years, if any, as the case may be, for a period of one year after the death of the [decedent] . . ..” (Our emphasis).

This wording was carried forward through the 1939 revision, where it appeared as § 106, and the 1949 revision as part of § 462.450. Despite the copulative conjunction “and,” emphasized above, our courts continued to indicate that the surviving spouse’s allowance was his (or her) sole property, and that he deprived the minor children of nothing if he failed to use it for their support. See, e. g., Alexander v. Glasgow, 365 Mo. 24, 29, 275 S.W.2d 339, 342[4-6] (banc 1955). The rulings of our courts were entirely consonant with the holdings from other states construing similar statutes. It was assumed, but not required, that the one year’s support allowance would be used to support the minor children. See, generally, Harris’ Adm’r v. Adams, 117 Ky. 407, 78 S.W. 156, 157-158 (1904); Drewry v. Raleigh Savings Bank & Trust Co., 173 N.C. 664, 92 S.E. 593, 594[6] (1917); 1 Woerner, Am. Law of Administration § 89, p. 267, n. 1 (1923). Historically, then, the one year support allowance was the sole property of the surviving spouse, if any, upon the death of the other spouse. And, in enacting § 474.260 in its original form, Laws of Mo. 1955, p. 385, § 135, those most closely associated with the 1955 revision of the probate laws had the view that the revision merely expressed “the substance” of existing law as far as the one year support allowance was concerned. Phelps v. Bookwalter, supra, 210 F.Supp. at 805-806.

If a strict rule of literal construction were followed, we suppose an argument of sorts could be made that §§ 474.260 and 474.300, as originally enacted, looked to separate allowances for the surviving spouse and minor children. Reading § 474.260 as originally enacted, the use of the copulative or cumulative conjunction “and” to connect the nouns “spouse” and “children,” and the use of the plural possessive pronoun “their” to modify the noun “maintenance” suggest a multiple interest in the family allowance if we accept the grammatical notions that the function of a copulative conjunction is to indicate more than one, and the pronoun “their” functions as an attribute or possessive adjective to describe the noun “maintenance.” Moreover, the first clause of the second sentence of the statute makes the allowance payable to the surviving spouse, but is modified by the subordinating clause “for the use of such surviving spouse and minor children” and suggests, grammatically, that the surviving minor children may have some sort of legally protectible interest in the family allowance. The language of the first sentence of original § 474.300 lends credence to this argument, as noted in Bookwalter v. Phelps, supra, 325 F.2d at 190 (Blackmun, J., dissenting). However, given the history construction and apparent purpose of prior statutes, the language of the 1955 amendments forcefully brings to mind Professor Robert Keeton’s admonition that “not speaking” to an issue is not “speaking” to that issue, i. e., the General Assembly probably did not think of the possibility of separable interests at all. Therefore we must look to other (including former) statutory directives and judicial precedents as data by which to be guided.

In any event, the amendments to §§ 474.-260 and 474.300 indicate meticulous attention to the possibility of coexistent interests in the one year support allowance. Gone is the phrase “surviving spouse and unmarried minor children”; instead we read “the surviving spouse is entitled.” The former expression “for their maintenance” is replaced by “for his maintenance.” Present § 474.-260 does provide, of course, that the court may divide the one year’s support allowance between the surviving spouse and the unmarried minor children if it finds it would be just and equitable to do so, but nothing in the second sentence of § 474.260 suggests that the General Assembly had two allowances in mind. Present § 474.300 in terms provides that death of the surviving spouse within the one year period shall not affect his or her right to the allowance, although it does provide that if the surviving spouse dies before the allowance is made or is paid, the one year support may be allowed or paid to the surviving minor children. In short, there is nothing in the history of the statutes creating and allowing the one year support allowance nor anything in the language of the present statute which gives credence to the argument that the probate court should have made a separate allowance to Enoch Ray. It therefore follows that in the circumstances presented, Enoch Ray was not “aggrieved” within the meaning of § 472.160.1, and his appeal was properly dismissed.

Accordingly, the judgment is affirmed.

All concur.

      . References to statutes are to this revision and V.A.M.S., except where otherwise indicated.

      . Which in material part read: “Enoch Ray Maxey, ... on his oath, says that the appeal from the Order of the Probate Court of Butler County, ... on the 28th day of April, 1977, denying an allowance for the support of Enoch Ray Maxey, in the above entitled cause . . . ” (Emphasis ours).

      . This is the language which troubled Justice (then Judge) Blackmun in Bookwalter v. Phelps, supra, 325 F.2d at 189, the question being whether the one year support allowance was “indefeasibly vested” within the meaning of § 2056(b)(1) of the I.R.C. of 1954.

      . The minor children took the allowance if there was no surviving spouse, § 462.490, RSMo 1949, but we are not concerned with that situation here.

      . R. Keeton, Statutes, Gaps and Values in Tort Law, 44 J.Air.L. & Commerce 1, 7-9 (1978). Professor Keeton was speaking of tort law, but his guidelines are most convincing here.

      . “His,” of course, also means “hers,” if the surviving spouse is female. Section 1.030.2.


source: Caselaw Access Project

author: STOREY, Justice.

license: Public Domain

text:
    Henry H. KYLE, Appellant, v. Robert F. COREY, Appellee.
    No. 19808.
    Court of Civil Appeals of Texas, Dallas.
    June 19, 1979.
    Rehearing Denied July 25, 1979.
    J. Robert Fisher, Winstead, McGuire, Se-chrest & Trimble, Dallas, for appellant.
    Corbet F. Bryant, Jr., Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, for appellee.
    Before AKIN, ROBERTSON and STO-REY, JJ.
   STOREY, Justice.

Appellant Henry H. Kyle presents a single point of error, complaining that the trial court erred in sustaining the special appearance of the defendant Robert F. Corey because the contract sued upon was performable in Texas and partially negotiated by Corey while still a resident of Texas. On the other hand, Corey urges that the pleadings are insufficient to invoke the provisions of Tex.Rev.Civ.Stat.Ann. art. 2031b, § 4 (Vernon’s 1964), because, although a purported contract was attached to plaintiff’s petition, it was not sufficient of itself to establish liability against him. Further, Corey asserts that proof offered at the special appearance hearing established that no contract between the parties was ever consummated. We affirm on the ground that the trial court impliedly found that no contract existed between the parties and therefore, do not consider the question of the sufficiency of the pleadings.

Kyle sought to establish in personam jurisdiction over defendant Corey, a resident of California, under section 4 of article 2031b, which provides that a “nonresident natural person shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State. Entering into a contract performable in whole or in part within this state is an essential element of the exercise of jurisdiction under section 4, and the cause of action must arise out of the same contractual arrangement. Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir. 1974).

The contract relied upon by plaintiff was attached to his petition. Also attached was a promissory note of Capital Consultants Corporation for $30,400.00 payable to Republic National Bank, which was signed by Corey as President of Capital and guaranteed by the endorsement of Kyle. Additionally, there was attached to plaintiff’s petition, a check drawn by Kyle to the order of Corey, individually, for $30,400.00 which was shown to have been endorsed by Corey to Republic. The petition alleged that by reason of the payment of $30,400.00 made by Kyle to Corey, the plaintiff Kyle was entitled to reimbursement for such amount from Corey, or, alternatively, was entitled to indemnification from Corey.

While it is made clear from plaintiff’s petition that the underlying obligation sued upon is Kyle’s check payable to Corey and in turn endorsed to Republic, this transaction standing alone places no burden on Corey to reimburse or indemnify. This is true, first, because the debt to Republic shows on its face to be a corporate debt of Capital Consultants, and, second, because the record does not reflect that the check was, in fact, used to repay the Republic note. Consequently, reference must be made to the contract in order to determine if there is established any liability on the part of Corey to Kyle. A careful reading of that part of the contract which was attached to plaintiff’s petition fails to disclose any obligation on the part of Corey to reimburse or indemnify Kyle. However, proof offered at the special appearance hearing showed that the parties intended that, at closing, several other documents would be signed, attached to and made a part of the contract. These documents were offered into evidence. They clearly revealed that Corey would be obligated to purchase the Republic note and indemnify Kyle from any liability with respect to it. The contract, when read with these attachments, leave no doubt that a substantial part of it was performable in Texas, and that the action declared upon arose out of its breach. The question then arises as to whether the entire contract among the parties was ever consummated.

Further proof at the hearing showed that Corey signed the contract, the indemnity agreement and other supporting documents on January 16,1974, more than two months after he ceased to be a resident of Texas. All of the instruments were then mailed by Corey’s attorney in California to the attorney representing the other parties in Dallas. The attorney’s cover letter listed the enclosed documents and continued:

Please be advised that none of the arrangements between our respective clients shall be deemed effective until such time as you have had signed by your clients and returned to us the following documents:
(1) the restated agreement;
(2) the security agreement;
(3) the enclosed attached “addendum to the restated agreement”;
(4) an executed copy of the “rider A to promissory note”.
Furthermore, the “Restated Agreement” shall not be deemed effective until signed and returned to us with the addendum attached, together with income and expense statements of Capital Consultants Corporation for the following periods:
October 1973; November 1973; December 1973; and the year end statement for calendar year 1973.
At such time as all of these documents have been received by us, Mr. Corey will forward to you properly endorsed Capital stock certificates in Capital Consultants Corporation. We have not returned the blank stock powers to you since the certificates are in our possession and will be delivered with appropriate assignments. If you have any questions or problems relating to these matters, please do not hesitate to contact me.

The record shows that none of these conditions were ever performed by plaintiff or by anyone acting for him. Further testimony established that the plaintiff did not know if the proceeds of his check were used to pay the Republic note or if indeed, the note had been paid. In the absence of the written agreement, there was no obligation on the part of Corey to indemnify Kyle, nor is there any agreement shown by which Corey agreed to reimburse Kyle or offer him restitution for the proceeds of the check as was alleged in Kyle’s petition.

Although the trial court made no specific finding with respect to whether the contract was ever consummated, such finding is implied in its judgment sustaining Corey’s special appearance. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613 (1951), Sentry Development Corp. v. Norman, 553 S.W.2d 664 (Tex.Civ.App. — Tyler 1977, writ ref’d n. r. e.). Because there is ample evidence in the record to sustain this implied finding, we hold that in personam jurisdiction was never established under section 4 of article 2031b.

Accordingly, the order is sustained.


author: GUITTARD, Chief Justice.

text:
    Ruby ALEXANDER, Appellant, v. CITY OF GREENVILLE, Texas and Texas Municipal Power Agency, Appellees.
    No. 19971.
    Court of Civil Appeals of Texas, Dallas.
    July 9, 1979.
    Rehearing Denied Aug. 7, 1979.
    Cornel Walker, Law Offices of Paul Banner, Greenville, for appellant.
    Roy L. Barrett, Ñaman, Howell, Smith, Lee & Muldrow, Waco, Donald A. Parks, Greenville, for appellees.
    Before GUITTARD, C. J., and CARVER and STOREY, JJ.
   GUITTARD, Chief Justice.

Ruby Alexander is a resident of the City of Greenville and a customer of the municipal electric power system of that city. She filed this suit against the city and the Texas Municipal Power Agency to declare void a certain contract between the city and the agency for sale and delivery of electric power by the agency to the municipal system. The petition also alleges that the customers of the Greenville electric system would be illegally required to pay for private benefits obtained from public funds by citizens and property owners of Grimes County and that defendants should be restrained from using public property for private benefits. Defendants moved for summary judgment on various grounds, including plaintiff’s lack of standing to prosecute the suit and an adjudication of the validity of the contract in question by a previous judgment. The trial court rendered summary judgment that plaintiff take nothing. We hold that the court erred in rendering judgment that plaintiff take nothing, but that defendant is correct in asserting plaintiffs lack of standing. Consequently, we modify the judgment by dismissing the suit.

The summary-judgment proof shows that no tax funds are involved in the challenged activities of the city and the power agency. The petition shows that plaintiff alleges no interest peculiar to herself, as distinguished from residents of the city of Greenville and customers of its municipal power system generally. Consequently, plaintiff has no justiciable interest in the claims asserted and no standing to maintain this suit. Marshall v. City of Lubbock, 446 S.W.2d 740 (Tex.Civ.App. — Amarillo 1969, no writ); Franks v. Welch, 389 S.W.2d 142 (Tex.Civ.App. — Houston 1965, writ ref’d n. r. e.); Schenker v. City of San Antonio, 369 S.W.2d 626 (Tex.Civ.App. — San Antonio 1963, writ ref’d n. r. e.).

Lack of standing, however, is ground for dismissal rather than a take-nothing judgment, which is a denial of the claim on the merits. See City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754, 756 (1888); Sullivan v. Universal Electric Const. Co., 227 S.W.2d 387, 390 (Tex.Civ. App. — Austin 1950, writ ref’d n. r. e.); and cf. Schenker v. City of San Antonio, supra, at 630, (where trial court dismissed “with prejudice” for lack of justiciable interest, appellate court modified judgment by striking “with prejudice”). Although the court erred in this respect, we are authorized to render the judgment that the trial court should have rendered. Rule 434, Tex.R. Civ.P. Since the defendants’ motions for summary judgment raise the standing question, the judgment that the trial court should have rendered was to dismiss the suit. Accordingly, we modify the judgment by striking the provision that plaintiff “take nothing,” and, instead, render judgment dismissing the suit. Costs are taxed against appellant.

Judgment modified and suit dismissed.


text:
    Charles Keith FLOWERS, Appellant, v. Margaret Morin FLOWERS, Appellee.
    No. 20095.
    Court of Civil Appeals of Texas, Dallas.
    July 11, 1979.

      Larry B. Bach, Forney, Stanley E. Lat-inan, Dallas, for appellant.
    William E. Fullingim, Dallas, for appel-lee.
    Before GUITTARD, C. J., and STOREY and CARVER, JJ.
   GUITTARD, Chief Justice.

Appellant moves to vacate the judgment and remand the case for a new trial on the ground that, through no fault of his own, he has been unable to obtain a statement of facts because of loss of the official reporter’s notes. Appellee opposes the motion and presents his own “summary of the testimony,” which has been certified as correct by the trial judge. We hold that appellant is entitled to have the case reviewed on a question-and-answer statement of facts and that this right can be preserved in this case only by a new trial.

Appellant states that the grounds of his appeal are that there is no evidence, and, in the alternative, insufficient evidence to support the trial court’s judgment. These grounds cannot properly be considered in the absence of a verbatim record of the testimony. Waller v. O’Rear, 472 S.W.2d 789, 791 (Tex.Civ.App. — Waco 1971, writ ref’d n. r. e.) (instructed verdict). Under Rule 377, Tex.R.Civ.P., an appellant is entitled to a statement of facts in question-and-answer form, and if, through no fault of his own, after the exercise of due diligence, he is unable to procure such a statement of facts, his right to have the cause reviewed on appeal can be preserved in no other way than by a retrial of the case. Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697, 700 (1936). Appellant presents in support of his motion an affidavit of the official reporter stating that appellant had made a timely request, that both the shorthand notes and the recording of the testimony were stolen, and that efforts to recover them have been unsuccessful. Thus, due diligence by appellant has been shown.

Judgment vacated and cause remanded for another trial.


author: CARVER, Justice.

text:
    PRESIDENTIAL VILLAGE, LTD., et al, Appellants, v. LONE STAR GAS COMPANY, a division of Ensearch Corporation, Appellee.
    No. 19818.
    Court of Civil Appeals of Texas, Dallas.
    July 11, 1979.

      Pat M. Reed, Dallas, for appellants.
    C. Clint Adams, Dallas, for appellee.
    Before GUITTARD, C. J., and CARVER and HUMPHREYS, JJ.
   CARVER, Justice.

Presidential Village, Ltd., Tri-State, Inc., and Nora S. Smith appeal from a summary judgment granted in favor of Lone Star Gas Company on a second lien note. Presidential, et al., admit that, in a written agreement with Lone Star, they assumed and became liable to pay the note (with the original makers specifically released) unless excused by the alleged fraud of the makers in the sale of an apartment project. We conclude that the alleged fraud of the makers cannot constitute an available defense against Lone Star who accepted the obligation of Presidential, et al., and, in reliance thereon, released the original makers. We affirm the trial court’s summary judgment.

In 1974, W. J. Hunt, and others, executed the note in question in the amount of $150,-000 payable to Lone Star Gas Company. In 1975, the Hunts and Lone Star executed a modification agreement stating an agreed balance and recasting future installments. In 1976, the Hunts, Presidential, et al., and Lone Star Gas executed an instrument which recited the existence of the note, the modification agreement, and the deed of trust security on an apartment project, the sale terms of the apartment project between the Hunts and Presidential, et al, and then contracted for the release of the Hunts and for the assumption by Presidential, et al., “as though such note, deed of trust and modification agreement, and each of them, had been originally made, executed, and delivered by purchaser (Presidential, et al.).”

In response to Lone Star’s motion for summary judgment, the affidavit in behalf of the Presidential, et al., states:

Your affiant says that there was a failure of consideration as well as fraud and misrepresentation on the part of the said Hunts, and that upon discovery of same that said Tri-State, Inc., elected to rescind the contract between itself and the said Hunts and did properly perform all the necessary acts to effectuate a rescission.

No part of the affidavit connected the want of consideration or fraud with Lone Star Gas Company.

These facts make applicable the rule in Hill v. Hoeldtke, 104 Tex. 594, 142 S.W. 871 (1912); and Straus v. Brooks, 136 Tex. 141, 148 S.W.2d 393 (1941). In Hill, the purchaser of land assumed one outstanding lien but subsequently urged that the fraud of his seller in failing to reveal another and different lien, freed him of the assumption. The supreme court held that the promise of the grantee became irrevocable when the mortgagee had, in some manner, acted upon it. As to the manner or degree in which the mortgagee must act, the court said:

In those cases where it is held if the mortgagee has in some manner acted upon the promise of the grantee that the liability of the latter becomes fixed, it is not claimed that this action must be such as would create an estoppel against the grantee. It seems to be sufficient if it is such as to evince an acceptance or an adoption of the promise by the mortgagee.

142 S.W. at 874. In Straus, a divorced husband conveyed his interest in community property to the divorced wife and, as part of the consideration for the conveyance, she assumed payment of an indebtedness secured by a first lien on the property. The divorced wife and mortgagee then made a new agreement so changing the terms as to discharge the former husband as a matter of law. Thereafter, the divorced wife sought to defeat the mortgagee’s lien on a plea of homestead at the time of the original imposition of the lien. The supreme court held that an assumption by the purchaser when accepted by the payee of the obligations assumed becomes a contract under which the one making the assumption becomes the principal obligor and the original maker the surety. The recital of an assumption of debt or lien in a deed of conveyance is contractual in nature and operates to create a new contract on the part of one making the assumption regardless of the enforceability of the original obligation. The supreme court then reasoned that when the holder of the debt so dealt with the one who has assumed the indebtedness, in reliance upon such assumption, as to release the original obligor, the assumption must be enforced or the obligor will lose his debt.

We conclude that when Presidential, et al., assumed the debt and lien due to Lone Star “as though such note, deed of trust and modification agreement, and each of them, had been originally made, executed, and delivered by purchaser,” Presidential, et al., became the original obligor to Lone Star by such language and by operation of law as in Straus. Lone Star, by accepting Presidential, et al., and releasing the original makers, had so acted upon the assumption that Presidential, et al., cannot now avoid the assumption.

Presidential, et al., urge in support of their position the case of Dickson v. Day, 275 S.W. 307 (Tex.Civ.App. — Texarkana 1925, writ dism’d), which, it asserts, holds that fraud of the vendor justifies rescission, including rescission of an assumption agreement of outstanding liens. Upon examination of Dickson, we find that the facts are considerably different from those in the case at bar and the rule of law expressed in Dickson is actually consistent with the conclusion we have drawn. In Dickson, the owner of land subject to an outstanding mortgage sold to the purchaser who assumed the outstanding balance. The holder of the note and mortgage was not a party to the transaction or the negotiations which preceded it nor had he in any manner accepted or otherwise acted upon the purchaser’s assumption. In such circumstances, the Dickson court held the purchaser could avoid the purchase and the assumption. The Dickson opinion acknowledges that it does not purport to apply to cases where there is a “separate and independent contract” between the assuming purchaser and the holder of the mortgage, nor where the assuming purchaser induces the mortgagor to rely upon the assumption to their injury. We conclude that the separate and independent contract made by Presidential, et al., with Lone Star, which induced Lone Star to release the original makers, effectively prevents Presidential, et al., from using the alleged fraud of the makers as a defense against Lone Star for the reasons stated in Hiii and Straus, as well as Dickson.

For these same reasons, we hold that the trial court correctly sustained the summary judgment in favor of Lone Star Gas Company.

Affirmed.

HUMPHREYS, J., did not participate in the decision.


text:
    Rita Rochelle LEVESCY, Appellant, v. James F. CROCKER, Appellee.
    No. 19979.
    Court of Civil Appeals of Texas, Dallas.
    June 27, 1979.
    Rehearing Denied Aug. 7, 1979.

      Warren Hays, Law Offices of Jack Napier, Dallas, for appellant.
    Toby L. Gerber, Berman, Fiehtner & Mitchell, Dallas, for appellee.
    Before ROBERTSON, CARVER and STOREY, JJ.
   CARVER, Justice.

Rita Levescy appeals from a judgment dismissing a paternity suit, filed by her on behalf of her minor son against James Crocker. The trial court held that the suit was barred by Tex.Fam.Code Ann. § 13.01 (Vernon Supp.1978-1979) which provides that a suit to establish paternity must be brought before the child is one year old. We conclude the suit was not barred, as section 13.01 cannot be applied retroactively, and reverse and remand.

The minor child was born out of wedlock on September 5,1974. Section 13.01 did not become effective until September 1, 1975. This proceeding was filed on June 29, 1978. We must conclude from the trial court’s judgment, as well as the findings of fact and conclusions of law filed upon request of appellant, that the trial court deemed section 13.01 to apply retroactively to children born prior to September 1, 1975 with the same force as it applied prospectively to children born after that date.

The trial court’s order of dismissal is erroneous and requires reversal under this court’s opinion in Texas Department of Human Resources v. Delley, 581 So.2d 519 (Tex.Civ.App.- — Dallas 1979, writ ref’d n. r. e.), in which it was held that section 18.01 applies only to children born after September 1, 1975, the effective date of that provision.

In Delley, the court held that the proper statute of limitations applying to causes for determining paternity for children born pri- or to September 1, 1975 was the general four-year statute of limitations applicable to all causes of action of which a specific limitation was not otherwise applied by statute. Tex.Rev.Civ.Stat.Ann. art. 5535 (Vernon Supp.1978-1979). Further, in Del-ley, the court held that children born prior to September 1, 1975, and subject to the four-year statute, would have the benefit of tolling statutes so long as the child was under the disability of minority. Tex.Rev. Civ.Stat.Ann. art. 5535 (Vernon Supp.1978-1979). We hold that the opinion in Delley controls the disposition of this appeal. See also State Department of Public Welfare v. Martin, 562 S.W.2d 9 (Tex.Civ. App. — Eastland 1978, no writ); Cachings v. Hamm, 560 S.W.2d 194 (Tex.Civ.App.— Waco 1977, no writ); Alvarado v. Gonzales, 552 S.W.2d 539 (Tex.Civ.App. — Corpus Christi 1977, no writ).

Reversed and remanded.


text:
    Jeanne STEELE, Individually, and d/b/a Insight Interiors, Relator, v. Honorable Paul G. PEURIFOY, Ronald Volkman and Dolores Volkman, Respondents.
    No. 20078.
    Court of Civil Appeals of Texas, Dallas.
    July 12, 1979.

      Harry J. Martin, Jr., Witts & Wilson, Dallas, for relator.
    Bill C. Hunter, Hunter, Stewart, Salzber-ger & Vineyard, Dallas, for respondents.
    Before GUITTARD, C. J., and STOREY and CARVER, JJ.
   STOREY, Justice.

Relator brings a petition for writ of mandamus in which he asks that the Honorable Judge Paul G. Peurifoy be compelled to rescind his order declaring a mistrial and proceed to render final judgment on the jury verdict. The issue presented is whether this court has jurisdiction to issue mandamus under Tex.Rev.Civ.Stat.Ann. art. 1824 (Vernon 1964) where the trial judge’s order fails to state upon what ground mistrial was declared. Upon review of the trial judge’s order, we are unable to determine the specific ground upon which mistrial was based and we therefore are without jurisdiction to grant the writ of mandamus.

Plaintiffs sued relator in the trial court, alleging breach of an oral agreement to furnish interior design and interior decorating services, and breach of express warranty. The cause was submitted to the jury based on thirty-four special issues, most of which were answered in relator’s favor. Plaintiffs then moved for a mistrial, judgment non obstante veredicto, and motion for judgment on the verdict on grounds that answers to special issues were irreconcilable and in fatal conflict with one another, and that the court erred in submitting the case to the jury because no material issue of fact was raised by the evidence. The court’s order recites that after considering the matters raised by these motions, the record, and the arguments of counsel, it was of the opinion that a mistrial should be granted. Respondent argues that this court is without jurisdiction to grant mandamus and that the trial court’s order must stand. Respondent cites numerous authorities for the proposition that mandamus will lie only when the trial judge’s written order specifies the reasons for granting a mistrial. Johnson v. Court of Civil Appeals, 162 Tex. 613, 350 S.W.2d 330 (1961); Allen v. Long, 408 S.W.2d 342 (Tex. Civ.App. — Dallas 1966, writ dism’d). Respondent urges that the language in the judge’s order is too vague for this court to properly ascertain the grounds for the order of mistrial and therefore, we are without authority to grant mandamus.

In Johnson, the supreme court said there are only two instances where the appellate courts can mandamus the trial judge to set aside its order granting a motion for new trial:

(1) Where the trial court’s order was wholly void as where it was not entered in the term in which the trial was had; and
(2) Where the trial court has granted a new trial specifying in the written order the sole ground that the jury’s answers to special issues were conflicting.

350 S.W.2d at 331. L. B. Foster Steel Co. v. Moorhead, 382 S.W.2d 280 (Tex.Civ.App.— Houston 1964, no writ) is analogous to the case at bar. In that case, the plaintiff set out several grounds in the motion for mistrial, and the trial court’s order granting the mistrial stated:

the Court having considered both the Motion for Judgment upon the Verdict and the Motion for Mistrial and all the evidence, arguments and authorities adduced by counsel, and being of the opinion that the Motion for Mistrial ought to be sustained, it is, therefore, Ordered, Adjudged, and Decreed that a Mistrial be declared in this cause.

382 S.W.2d at 283. The court went on to hold that because the trial judge could have based his order upon one or more of the grounds set out in the motion for mistrial, it could not proceed to determine upon what ground the ruling was based. 382 S.W.2d at 283.

Relator argues in this case that the only ground in plaintiff’s motion for mistrial was irreconcilable and conflicting answers to special issues. We would agree with relator’s contention if the order had been limited to granting the motion for mistrial. The court, however, did not limit its order to the ground set forth in the motion for mistrial because its order reads:

the Court, after considering the matters raised by said motions, the record and the arguments of counsel, is of the opinion that a mistrial should be granted. It is, therefore, ordered, adjudged and decreed that a mistrial is granted in the above styled and numbered cause and the same shall be placed upon the docket for subsequent trial on the merits. [Emphasis added].

Based on the above discussion, we conclude that Foster Steel controls the instant case. The court’s order shows that its ruling could have been based on a ground not set out in plaintiffs motion. Because we are unable to discern the specific ground upon which the mistrial was based, we are without jurisdiction to issue the writ of mandamus prayed for by relator.

Mandamus denied.


text:
    NEWMAN OIL COMPANY et al., Appellants, v. Albert B. ALKEK and Foremost Petroleum Corporation, Appellees.
    No. 20068.
    Court of Civil Appeals of Texas, Dallas.
    July 13, 1979.

      John Feather, Johnston & Feather, Dallas, for appellants.
    Thomas R. McDade, Fulbright & Jawor-ski, Houston, for appellees.
    Before GUITTARD, C. J., and CARVER and STOREY, JJ.
   GUITTARD, Chief Justice.

Appellants, plaintiffs in the trial court, have appealed from an order sustaining a plea of privilege. They now move to reverse and remand on the ground that after they perfected the appeal, appellees waived their plea of privilege by serving a notice to take a series of depositions. We overrule the motion on the ground that Rule 88, Tex.R.Civ.P., expressly provides: “Issuing process for witnesses and taking depositions shall not constitute a waiver of a plea of privilege . . .

Appellants contend that this rule applies only to depositions taken for the purpose of discovery on the venue issues. They argue that to take depositions for the discovery of facts pertaining to the merits invokes the court’s jurisdiction on a matter not relating to venue and waives the plea of privilege.

We do not read the rule so narrowly. We conclude, rather that the purpose of Rule 88 is to enable the parties to proceed with preparation for trial on the merits, promptly and unhampered, so that the plea of privilege will not delay final disposition of the suit. Texas Land & Development Co. v. Myers, 239 S.W. 303, 304 (Tex.Civ. App. — San Antonio 1922, writ dism’d). Consequently, depositions before disposition of the plea of privilege need not be limited to venue issues.

In support of their motion, appellants cite Howe Grain & Mercantile Co. v. Taylor, 147 S.W. 656 (Tex.Civ.App. — San Antonio 1912, no writ). That case holds that a defendant waives his plea of privilege by moving, before the venue hearing, to quash a deposition taken by plaintiff. The opinion does not refer to the statute which is now Rule 88. Apparently the court was of the opinion that a motion to quash a deposition is not necessary to preparation for trial and is inconsistent with maintenance of a plea asking for transfer of the trial to another county. In the present case no action of appellees is shown that would be inconsistent with a trial in either county. Consequently, we hold that plaintiffs’ motion fails to establish that defendants have waived their plea.

In the alternative, appellants move the court for a protective order relieving them from the duty to appear for depositions on the ground that the notice for nine depositions on ten successive business days is an undue burden and has been served solely for harassment. This motion is not within our jurisdiction. The only matter pending before us is the venue appeal. The action on the merits is still pending in the district court of Dallas County, since its transfer has been suspended by the appeal under the provisions of Rule 385(c), Tex.R. Civ.P. Until the transfer becomes effective, that court has full power to protect the rights of the parties. Preissman v. Allied Bank of Texas, 525 S.W.2d 265, 267 (Tex.Civ.App. — San Antonio 1975, no writ).

Finally, we note appellants’ reference to appellees’ representation concerning a “directive” by the Chief Justice of this court ordering appellants to submit to depositions on the merits. The Chief Justice has made no such directive, and, for reasons already pointed out, this court has no jurisdiction with respect to discovery. The misconception apparently arose from the fact that counsel for appellees had approached our clerk concerning a motion to advance the appeal on the ground that otherwise appel-lees would be delayed in proceeding with their depositions. After consulting with the Chief Justice, the clerk advised that the pendency of the appeal provided no apparent occasion to delay the depositions. The court now adopts that view.

The motion to reverse on the record is overruled and motion for protective order is dismissed.


author: O’QUINN, Justice.

text:
    James H. COLTHARP et al., Appellants, v. The STATE of Texas, Appellee.
    No. 12915.
    Court of Civil Appeals of Texas, Austin.
    July 18, 1979.
    Rehearing Denied Aug. 22, 1979.
    Mary Joe Carroll, Clark, Thomas, Winters & Shapiro, Austin, for appellants.
    John L. Hill, Atty. Gen., Gilbert J. Ber-nal, Jr., Asst. Atty. Gen., Austin, for appel-lee.
   O’QUINN, Justice.

The State of Texas, through the Alcoholic Beverage Commission, brought this suit in March of 1976, seeking collection of more than $79,000 in alleged deficiencies in payments of beverage taxes plus penalties, against James H. Coltharp, doing business as several named holders of mixed beverage permits, and the surety companies, Western Surety Company and United States Fidelity and Guaranty Company.

By subsequent amended petition, in 1977, the State increased the amount sued for, named an additional permit holder, and adopted a form of verification, in conformity with Section 206.02 of the Texas Alcoholic Beverage Code, which placed the claim for taxes under provisions of Rule 185, Texas Rules of Civil Procedure, applicable to suits on sworn accounts.

Coltharp’s first amended answer, filed in response to the State’s original petition, set up a general denial and other grounds for specific defenses, but was not verified and did not conform to the wording required under Rule 185.

After the parties announced ready for trial, initial stipulations were stated, a jury had been empaneled, the State had made an opening statement, and the State’s verified audits had been offered in evidence, the State moved for instructed verdict on the ground that defendants below had failed to file verified answer as required under Rule 185. Attorneys for defendants advised the court that they had never seen the State’s first amended petition, filed under Section 206.02 in a form to place the tax claim within Rule 185 applicable to sworn accounts.

Counsel for defendants sought to withdraw announcement of ready and offered to file answer verified in conformity with Rule 185. The trial court stated that counsel would be permitted to perfect bills of exception to the ruling of the court, but the State’s motion for verdict would be granted, adding, “I don’t think I have any other alternative under Rule 185.”

Appellants bring three points of error. We will sustain the points upon which judgment will be reversed, and will remand the cause for trial.

We state at the outset facts disclosed by the record upon which appellants sought to withdraw their announcement of ready and to file amended pleadings to conform to the requirements of Rule 185.

In making a bill of exception to the trial court’s adverse ruling, counsel for appellants gave testimony that counsel had never seen, and did not know of the existence of, the State’s first amended petition. One attorney admitted that the “return receipt” for certified mail from the attorney general had been signed in the handwriting of his bookkeeper, but denied that he had personally received a copy of the State’s first amended petition, and, further, that he believed, when announcing ready, that the parties were going to trial on the State’s original petition. Counsel did not know of the first amended petition until he heard reference to it by the State’s attorney in his opening statement, and thereafter, being furnished a copy, saw the amended petition for “the first time.”

The record shows that the original petition was filed in March of 1976; that the State’s first amended petition, adopting the form of verification required under Rule 185, was filed in April of 1977; and that some six months thereafter, in October of 1977, defendant Coltharp filed his first amended answer “ . . .in answer to Plaintiff’s Original Petition herein . . ”

The sworn testimony of counsel, that he had never seen the amended petition and that it had not been received by him personally, is not contradicted in any manner. The fact that counsel filed his own amended pleadings six months after the State amended to invoke for the first time Rule 185, and did not answer the amended petition, but instead answered the State’s original petition, is consistent with counsel’s testimony. To that extent, at least, counsel’s amended pleadings in answer to the original petition provide corroboration of his explanation for failing to file a verified answer in conformity with Rule 185. If counsel had seen and read the State’s amended petition, it is only logical to assume that his amended answer, filed six months later, would not have stated that it was “ . in answer to Plaintiff’s Original Petition herein ...”

Counsel for appellants took appropriate action and made proper motions to withdraw announcement of ready and to amend the pleadings so that the State’s verified petition bearing the armament of Rule 185 could be squarely met by defensive issues already pleaded in the first amended answer, though not verified within requirements of the Rule. The trial court, as observed earlier, was of the view that the court had no “other alternative under Rule 185” but to refuse motions to withdraw announcements of ready and amend pleadings to conform with Rule 185.

Counsel for the State urged upon the court, “Withdrawing announcements of ready would just make Rule 185 meaningless, Your Honor.” The court stated, “I will deny your motion and grant the [State’s] motion for instructed verdict . . . ” Thereafter the trial court, in a letter to attorneys for all parties, stated: “This is to advise . . . that I am denying the relief requested by the defendants. In my opinion, to grant the relief requested would be in direct conflict with what the Supreme Court intended in Rule 185 . . ”

It is clear from the record that the trial court assumed that Rule 185 deprived the court of discretion. We agree with appellants that the concept that Rule 185 deprives a trial court of discretion to entertain a motion to withdraw announcement of ready and permit the filing of amended pleadings is plainly rejected by Parham v. Grace, 341 S.W.2d 503 (Tex.Civ.App. Fort Worth 1960, no writ).

That concept has been refuted likewise in Century Rental Equipment, Inc. v. Neo-Flasher Manufacturing Co., 378 S.W.2d 957, 960 (Tex.Civ.App. Houston 1964, no writ); South Texas Lumber Stores, Inc. v. Cain, 416 S.W.2d 530 (Tex.Civ.App. Austin 1967, no writ); Moore v. McKinney, 151 S.W.2d 255, 258, 260 (Tex.Civ.App. Dallas 1941, no writ); Grace v. Rahlfs, 508 S.W.2d 158, 163 (Tex.Civ.App. El Paso 1974, writ ref’d n. r. e.); Reiger v. DeWylf, 566 S.W.2d 47, 49 (Tex.Civ.App. Beaumont 1978, writ ref’d n. r. e.).

In this case it is undenied that counsel for appellants had no knowledge of, and had never seen, the State’s verified amended petition until after announcement of ready and commencement of trial. The State on appeal insists that counsel was negligent in some manner by allowing a bookkeeper to receive and sign for certified mail. An issue of negligence was not before the trial court and is not an issue for consideration on appeal.

Counsel for appellants consistently made it clear that appellants proposed at trial to contest the audits, later verified under Rule 185 by the State’s amended petition, which were relied on by the State to prove plaintiff’s case. Not only did the amended answer show a challenge of the audits, but after the taking of eleven depositions, in which both parties participated, the principal and controlling issue in the lawsuit hac been established beyond doubt. The only barrier to prevent a vigorous defense at trial was the want of an answer sworn to as required by Rule 185.

We conclude that it was error for the trial court to hold that under Rule 185 the court was unable to exercise judicial discretion and permit appellants to withdraw announcement of ready and to amend the pleadings to conform to Rule 185, and that the ends of justice require that the judgment be reversed and the cause remanded for trial on the merits.

The judgment of the trial court is reversed. The cause is remanded for new trial.


author: SHANNON, Justice.

text:
    BANDAS INDUSTRIES, INC., Appellant, v. EMPLOYERS FIRE INSURANCE COMPANY, Appellee.
    No. 12962.
    Court of Civil Appeals of Texas, Austin.
    July 18, 1979.

      William G. Herrmann, Harker Heights, for appellant.
    Geoffrey A. FitzGerald, Bowmer, Courtney, Burleson & Pemberton, Temple, for appellee.
   SHANNON, Justice.

Appellee, Employers Fire Insurance Company, sued appellant, Bandas Industries, Inc., in the district court of Bell County to recover $36,354.00 in retrospective premiums allegedly owed by appellant on two policies of insurance. After trial to the court, judgment was entered for appellee for that sum. We will affirm the judgment.

On or about June 30, 1975, appellant purchased two policies of insurance from appel-lee, one policy being a worker’s compensation and employers’ liability contract and the other being a comprehensive general liability contract. The insurance policies afforded appellant coverage from June 30, 1975 to June 30, 1976. The policies contained a retrospective premium endorsement.

A retrospective premium plan is one in which the assured pays a standard premium upon initiation of the policy period, subject to an adjustment at the anniversary of the policy based upon the loss experience of the assured. The sum sought by appellee’s lawsuit represented the difference between the standard premium previously paid by appellant and the maximum retrospective premium permitted under the endorsement.

By way of defense, appellant pleaded that the part of the insurance contract providing for a retrospective premium was unconscionable and unenforceable. In a counterclaim, appellant claimed damages of $100,000.00 resulting from appellee’s cancellation of the insurance contracts. Appellant does not attack that part of the judgment denying the relief requested in the counterclaim.

It was undisputed that the parties entered into the contracts of insurance, that appellee cancelled the policies of insurance, that the retrospective premium due was $36,354.00, that appellee made demand upon appellant for that sum, and that appellant refused to pay.

After entry of judgment for appellee for $36,354.00, appellant requested the court to file findings of fact and conclusions of law. In response, the district court filed eighty-five findings of fact and thirty-three conclusions of law.

Appellant’s brief contains twelve points of error. The refusal of the court to find the retrospective premium endorsement unconscionable is the basis for three points of error. The points will be overruled. Appellee did not set the rates or dictate the terms of the retrospective premium endorsements. The endorsement is contained in a printed form approved and sanctioned by the State Board of Insurance, and is used throughout the state. It is undisputed that appellee did not violate any rule or regulation of the State Board of Insurance in the realization of this transaction. There was no evidence that appellant was compelled to enter into the contracts of insurance with appellee. It is of significance that appellant obtained coverage from another carrier on the same day that appellee cancelled the insurance contracts. The district court concluded correctly that the contracts of insurance were not unconscionable.

Three points of error claim that the district court erred in refusing to admit parol evidence as to the circumstances existing at the time the parties entered into the contract of insurance, inasmuch as the terms of the contract were ambiguous. Appellant did not plead that the contract was ambiguous, nor did appellant tender any evidence for the purpose of explaining any ambiguity in the terms of the contract. Appellant did tender certain testimony of Mr. Bandas for the purpose of showing that the contract of insurance was unconscionable. The district court refused the tender for that purpose and the evidence was not re-offered for the purpose of explaining any ambiguity.

“It is well settled, that questions upon the admissibility of evidence, will be considered and responded to by the court, in the very terms in which they are propounded. If evidence proposed is not admissible for the purposes for which it is proposed, on objection to its admissibility, the court will not inquire whether it might be admissible for any other purpose.” O’Brien v. Hilburn, 22 Tex. 616 (1858). The points of error are overruled.

In points of error seven through ten, appellant claims that the contract of insurance was not cancellable. Finding of fact thirty-six provides, “Both the policies and the endorsements provide for cancellation by either party.” Finding fifty-five provides, “Each party possessed the same cancellation privilege.” Neither finding of fact was challenged by point of error. Material findings of fact must be challenged in appellant’s brief or else appellant is bound by such findings. Cortez v. Cortez, 457 S.W.2d 131 (Tex.Civ.App.1970, no writ); Kroger Company v. Warren, 420 S.W.2d 218 (Tex.Civ.App.1967, no writ). Points of error seven through ten are overruled.

Points eleven and twelve are that the court erred in finding that during the period the contracts of insurance were in effect, appellant had no safety program because such finding was supported by no evidence or, alternatively, was contrary to the great weight and preponderance of the evidence.

The evidence was conflicting with respect to whether or not appellant had in effect a safety program. The fact finder, the district court in this instance, is the judge of the credibility of the witnesses and the weight to be accorded their testimony. Harrell v. Sunylan Co., 128 Tex. 460, 97 S.W.2d 686 (1936). The district court must have credited appellee’s evidence and disbelieved the testimony of appellant.

Assuming, arguendo, that the district court erred in finding that appellant did not have a safety program in effect, appellant has not demonstrated how such error was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Tex.R. Civ.P. 434. The points of error are overruled and the judgment is affirmed.


author: HUMPHREYS, Justice.

text:
    Alida Jean Johnston McLEMORE, Appellant, v. Alan David JOHNSTON, Appellee.
    No. 19975.
    Court of Civil Appeals of Texas, Dallas.
    July 19, 1979.

      Thomas A. Melody, Dallas, J. Dan Con-nelly, Arlington, for appellant.
    Morton D. Newman, Dallas, for appellee.
    Before GUITTARD, C. J., and AKIN and HUMPHREYS, JJ.
   HUMPHREYS, Justice.

Appellant Alida Jean Johnston McLe-more appeals from a summary judgment denying her claim for equitable partition of the parties’ matrimonial residence. Upon divorce in 1971, the decree awarded the residence to appellee, Alan David Johnston, for his use during their children’s minority, and fixed appellant’s interest in the residence at $17,200. Appellant now claims that equity requires she be given a one-half interest in the present value of the property. The court granted summary judgment on the ground that appellant could not collaterally attack the prior divorce judgment. Appellee also filed a separate limited appeal complaining of the court’s award of prejudgment interest on the $17,200. We hold that the divorce decree may not be collaterally attacked and that the appellee’s complaint was waived. Accordingly, we affirm.

The 1971 divorce judgment found the value of the residence at that time to be $34,-400, but awarded its use to appellee as a residence for himself and his children until the youngest child reached eighteen or such use was abandoned. The decree further provided that within nine months after the youngest child should reach eighteen, the appellee should have the right to purchase appellant’s one-half interest for $17,200, and that if by agreement the parties should sell the property, the sum of $17,200 should be paid to appellant, less appellant’s share of the cost of the sale. The decree continues:

If, after the expiration of nine months from the date upon which the youngest child of the parties reaches the age of eighteen years, neither of the aforede-scribed events have occurred then upon proper motion made by either party, the Court will name and appoint a Receiver for the purpose of selling said property, paying all expenses of sale, and delivering to Petitioner the sum of $17,200 less her proportionate share of the cost attributable to such sale, and delivering to Respondent the balance of such net proceeds, if any.

The youngest child reached eighteen years of age in December of 1977. Nine months later, Appellant filed suit for equitable partition, claiming that the divorce judgment gave an option to appellee which he failed to exercise within the required time. Appellant contends that since appel-lee failed to exercise the option she now has a joint tenancy in the property and is entitled to one-half of the property at its present value. Pursuant to an agreement made after the suit was filed, the property has been sold and proceeds have been paid into the court registry. In a summary judgment granted on appellee’s motion, the court ordered the amount of $17,200 to be paid to appellant with nine percent interest from September 23, 1978, and the balance to be paid to appellee.

Appellant attacks the summary judgment on three grounds. First, she claims her action is a new cause of action based in equity, separate from the divorce action. Second, she claims a constructive trust was imposed on the property when appellee did not pay appellant her share of the property within a reasonable time. Finally, she argues the court improperly failed to take judicial notice of the inflationary period between the divorce decree and the summary judgment hearing. In her pleadings, appellant asserts a right to equity because of changed conditions and unjust enrichment of the appellee. She also pleads that the decree was ambiguous, and was subject to the construction that she is an equal cotenant of the property. No contention is made that the divorce decree is void.

We conclude that appellant’s claim for equitable relief has no merit because this action is an attempted collateral attack upon a valid divorce judgment. In general, valid existing judgments can not be collaterally attacked. Equity will take jurisdiction to set aside a judgment only on a direct attack by bill of review subject to strict requirements not shown here. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950); Sedgwick v. Kirby Lumber Co., 130 Tex. 163, 107 S.W.2d 358-359 (1937).

We also reject appellant’s argument that the divorce decree was ambiguous. The terms of the decree are clear. On the expiration of the nine-month period after the parties’ children reached eighteen, if appellee had not delivered appellant the $17,200, appellant's remedy was to petition the court for the appointment of a receiver to sell the property so that she could obtain the $17,200 due her under the decree. Under the decree, appellant is clearly only entitled to $17,200, less costs, regardless of appellee’s actions.

Appellee filed a limited appeal in this case complaining of the award of prejudgment interest to appellant on the $17,-200, from the date of September 23, 1978, until January 23,1979. We hold that appel-lee waived this complaint by not excepting to the judgment or bringing the complaint to the attention of the trial court. Westinghouse Credit Corporation v. Kownsler, 496 S.W.2d 531, 533 (Tex.1973); Reliance Insurance Co. v. Dahlstrom Corporation, 568 S.W.2d 733, 737 (Tex.Civ.App. — East-land 1978, writ ref’d n. r. e.). We recognize that Tex.R.Civ.P. 324, as amended, no longer requires a motion for new trial as a prerequisite to appeal. The rule, however, still requires a motion for new trial for “a complaint which has not otherwise been ruled upon.” Appellee’s complaint was not ruled upon in the trial court and was therefore waived.

Affirmed.


author: STEPHEN J. PRESLAR, Chief Justice.

text:
    In the Matter of Appeal of B. Y.
    No. 6835.
    Court of Civil Appeals of Texas, El Paso.
    July 25, 1979.
    Rehearing Denied Aug. 8, 1979.

      Jimmie D. Oglesby, Midland, for appellant.
    Leslie C. Acker, County Atty., L. Jean Wallace, Asst. County Atty., Midland, for appellee.
   OPINION

STEPHEN J. PRESLAR, Chief Justice.

This appeal is from the order of the Juvenile Court of Midland County waiving its exclusive jurisdiction of a minor and transferring the juvenile to the District Court for criminal proceedings. We affirm.

The sixteen-year old Appellant was arrested and charged with violations of Sections 21.10 and 21.09 of the Texas Penal Code in the County Court at Law of Midland County, Texas, sitting as a Juvenile Court. The State filed a motion requesting waiver of that Court’s jurisdiction to criminal District Court under Section 54.02 of the Texas Family Code. The Juvenile Court, after hearing, granted such motion and it is from that order that this appeal is taken.

Appellant asserts that the County Court at Law did not have subject matter jurisdiction in that it was not a Court possessed of Juvenile Court jurisdiction.

The Midland County Court at Law owes its creation and jurisdiction to Article 1970-870, Tex.Rev.Civ.Stat.Ann. (Acts 1977, 65th Leg'.). The Act specifies the Court’s jurisdiction as:

“[A]ll causes and proceedings, civil, criminal, juvenile , . . over which by the constitution and general laws of the state the county courts have jurisdiction, and its jurisdiction is concurrent with that of the County Court of Midland County.”

This Court recently held that the County Court of Midland County possessed juvenile jurisdiction. In Matter of G. B. B., 572 S.W.2d 751 (1978, writ ref’d n. r. e.). If that decision is correct, then it follows that the Midland County Court at Law is likewise possessed with juvenile jurisdiction by the wording of Article 1970-370, supra.

Appellant contends that our decision in Matter of G. B. B. is wrong; that the constitutional County Court of Midland does not have juvenile jurisdiction. He cites two cases which appear to be contrary to our holding in G. B. B. because of their construction of Section 51.04 of the Tex. Family Code Ann. Hury v. Magee, 575 S.W.2d 345 (Tex.Civ.App. — Houston [14th Dist.] 1978, writ dism’d w. o. j.); E— S— v. State, 536 S.W.2d 622 (Tex.Civ.App.— San Antonio 1976, no writ). Section 51.04 of the Texas Family Code is entitled “Jurisdiction." It provides:

(a) The juvenile court has exclusive original jurisdiction over proceedings under this title.
(b) In a county having a juvenile board, the board shall designate one or more district, criminal district, domestic relations, juvenile, or county courts or county courts at law as the juvenile court, subject to Subsection (d) of this section.

The holding of both of the above cases is that that language does not grant jurisdiction to a court not already possessing it. In other words, it does not create new juvenile court jurisdiction where it did not already exist, but was a designation of a court having such power as being the juvenile court. In both of those cases, the court designated by the Board as the juvenile court had not been given jurisdiction over juvenile matters from a source other than the Family Code. In Matter of G. B. B., the Midland County Court had been given jurisdiction over juvenile matters by Article 2388(1), Sec. 4, Tex.Rev.Civ.Stat.Ann. We adhere to our decision in that case for the reasons therein stated, and for the further reason that the Supreme Court refused a writ of error — no reversible error — in that case and the other two cases have not been passed on by the Supreme Court. The “no reversible error” designation becomes important when we consider that we specifically ruled on the basic question of jurisdiction, and had our decision been wrong it most certainly would have been reversible error.

Appellant urges that there was a lack of personal jurisdiction because the notice requirements of the Family Code were not satisfied. A detention hearing was held on September 28, 1978, and on that same day the State filed its motion requesting the Court to waive its jurisdiction. Summons was issued and served commanding the juvenile and his parents to appear at a hearing to be held on October 9, 1978, on the waiver motion. Thereafter, the State determined that it could not have available a witness for that date and orally requested the attorney for Appellant to reschedule the matter for October 13. Counsel for Appellant later determined that he could not be present on that date, and he and State’s counsel orally agreed for the matter to be heard on October 16, and the matter was heard at that time. No further summons or process of any kind was issued to either parent or the child. The child was in detention and the parents were notified by Appellant’s attorney, and all appeared at the hearing on October 16th. Appellant cites several cases holding that even a technical defect in the summons deprives a court of jurisdiction, and that this defect cannot be waived. In Matter of W. L. C., 562 S.W.2d 454 (Tex.1978); In re K. W. S., 521 S.W.2d 890 (Tex.Civ.App. — Beaumont 1975, no writ); In re I. Y., 535 S.W.2d 729 (Tex.Civ.App. — Eastland 1976, no writ). These cases are not applicable in that they involve defective or complete lack of summons resulting in jurisdiction never attaching. In the case before us, there is no contention that the summons served on the juvenile and his parents was in any way defective and not sufficient to confer jurisdiction; rather, the argument is that the jurisdiction acquired over the person of the Appellant by the service of summons to appear at the October 9 hearing was lost when the Court failed to convene that hearing. We are unable to agree, and conclude that the validity acquired jurisdiction did not cease because the parties agreed to a continuance. Appellant’s position would require a second or possibly a third summons because of the continuances. Due process was afforded; the purposes of notice were present; a second or third summons would have afforded Appellant nothing more. In Matter of B. R. D. v. State, 575 S.W.2d 126 (Tex.Civ.App. — Corpus Christi 1978, writ ref’d n. r. e.), it was held that the original summons was sufficient to confer jurisdiction, and a second set of summons was not needed when the certification hearing was continued on the Appellant’s motion; the court there noted that nowhere does the Family Code require sending a second set of summons.

Appellant asserts error in that the Court did not comply with Section 54.02(h) Tex. Family Code Ann., which provides in part:

If the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver .

Reversible error is not present here by the fact that the Court’s order seems to parrot the Section 54.02 list of factors the Court should consider in making a transfer; the enumerated reasons are supported by evidence. The order is sufficient. In Matter of K_ W_ E_, 556 S.W.2d 626 (Tex. Civ.App. — Waco 1977, no writ). We have examined the statement of facts and find the evidence sufficient to support the Court’s findings.

All points of error have been considered and all are overruled. The judgment of the trial Court is affirmed.


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    RENGER MEMORIAL HOSPITAL, a nonprofit corporation, Appellant, v. The STATE of Texas, Appellee.
    No. 12914.
    Court of Civil Appeals of Texas, Austin.
    July 25, 1979.
    C. Dean Davis, David M. Davis; Davis, Davis & Sharp, Austin, for appellant.
    John L. Hill, Atty. Gen., Douglas B. Owen, Asst. Atty. Gen., Austin, for State.
    A. J. Saegert, James S. Frost, Threlkeld, Saegert, Saegert, Kirkendall & Frost, Se-guin, for intervenor, Texas Lutheran College.
   O’QUINN, Justice.

Renger Memorial Hospital, a nonprofit corporation, sued by the State of Texas to cancel the hospital charter and to collect a promissory note and foreclose lien on land securing the note, appeals from order of district court in Travis County overruling the hospital’s plea of privilege to be sued in Lavaca county, its residence and site of the land securing the note.

Renger Hospital brings seven points of error attacking the trial court’s order overruling the plea of privilege. We will affirm action of the trial court denying change of venue.

The parties went to trial on the State’s first amended original petition in which the State sought to cancel the hospital’s corporate charter, alleging insolvency of the hospital and that the corporation “no longer actually operates a nonprofit hospital,” and in addition sought judgment for the University of Texas and Texas Lutheran College for unpaid principal of a promissory note for $121,000.00, together with foreclosure of the lien on land pledged to secure the note. Texas Lutheran College timely filed its intervention.

Renger Hospital contended that its residence was. in Lavaca County and that the land upon which the State sought to foreclose its lien was situated in Lavaca County, by reason of which facts venue, under Article 1995, subdivision 12, properly was in Lavaca County and not in Travis County where suit was filed. The State contended that the action for involuntary dissolution of the hospital charter was properly brought in Travis County under either subdivision 21 of Article 1995 or subdivision 30 of the statute, when invoked under Article 1396-7.03, and that under Rule 51(a), Rules of Civil Procedure, the second action on the promissory note was properly joined to the suit to cancel the charter.

The trial court filed findings of fact and conclusions of law. The court overruled the plea of privilege under its conclusion that venue was proper in Travis County “by virtue of . . . Article 1995(21) . [and] Article 1396-7.03 . . ”

Under subdivision 21 of Article 1995 “Suits brought by the State for the purpose of forfeiting the charter of a private corporation . . may be brought in Travis County.” Under terms of Article 1396-7.03 “Every action for the involuntary dissolution of a domestic corporation shall be commenced by the Attorney General either in the district court of the county in which the registered office of the corporation in this State is situated, or in any district court of Travis County.” Under subdivision 30 of Article 1995 “Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.” (All emphasis added).

The State in this action chose to bring suit in Travis County, as authorized by the statutes for suits to forfeit charters or effect involuntary dissolutions of corporations. The second cause of action, to collect the promissory note and foreclose the lien, is maintainable in Travis County under (1) the Middlebrook Doctrine and (2) Rule 51(a), Texas Rules of Civil Procedure.

Under the Middlebrook Doctrine, announced by the Supreme Court in 1894, a plaintiff may join with the action, which is clearly maintainable in the county of suit, additional actions against defendant in the same county, though independently such added actions may not be maintainable in the county of suit, “. . in order to avoid multiplicity of suits.” Middlebrook v. Bradley Manufacturing Co., 86 Tex. 706, 26 S.W. 935 (1894). The Supreme Court reaffirmed the doctrine in Stevens v. Willson, 120 Tex. 584, 39 S.W.2d 1088 (1931) and in Pecos Valley Southern Railway Company v. Parkhill Produce Company, 163 Tex. 88, 352 S.W.2d 723 (1961). This Court in 1977 applied the doctrine to a cause in which venue was fixed by contract in Travis County, and it was held that an additional claim could be maintained without showing venue in Travis County. Cates v. Woody, 557 S.W.2d 857 (Tex.Civ.App. Austin 1977, writ dism’d).

Joinder of the State’s two claims in this suit is proper under Rule 51(a), which provides that a plaintiff may join, either as independent or as alternate claims, as many claims, either legal or equitable, or both, as he may have against an opposing party, On the basis that “The law requires that the parties settle all their controversies practicable in a single suit,” Rule 51(a) was applied in Parkhill Produce Company v. Pecos Valley Southern Railway Company, 848 S.W.2d 208 (Tex.Civ.App. San Antonio 1961, writ ref’d n. r. e., 163 Tex. 88, 352 S.W.2d 723).

Renger Hospital offered evidence at the hearing on the plea of privilege that the hospital corporation was not, as alleged by the State, an insolvent entity, and the trial court later in findings of fact found that “As of June 13, 1978 the Renger Memorial Hospital was solvent.” Renger Hospital on appeal contends that such finding renders moot the suit to forfeit appellant’s charter. We do not regard that finding as controlling of venue.

The State's suit to dissolve the charter was broader than a mere claim of insolvency. The State sought injunctive relief to prevent the officers and directors from continuing any business, from dispensing assets or incurring additional liabilities, and from concealing assets or liabilities. In addition, the State sought to cancel the charter, and for costs, “including cost of receivership.”

Moreover, under both Article 1396-7.03 and subdivision 21 of Article 1995, venue is determined by reference to the State’s pleadings without resort to evidence on insolvency. The trial court, in reaching its conclusion of law and in the order overruling the plea of privilege, correctly disregarded the evidence of solvency. This Court on at least two occasions has considered and adhered to the rule that, where the Legislature has designated the county of venue, venue is determinable solely from allegations in plaintiff’s petition. Harrington v. State, 363 S.W.2d 321 (Tex.Civ.App. Austin 1962, writ ref’d n. r. e.), cited and reviewed by the Supreme Court in Gambill v. Town of Ponder, 494 S.W.2d 808, 811 (Tex.Sup.1973); Morrow v. State, 509 S.W.2d 726, 728 (Tex.Civ.App. Austin 1974, no writ).

We have examined all points of error brought by appellant and carefully considered the arguments and contentions made under the points. All the points are overruled, either on the basis of the reasons already discussed, or as being without merit requiring further discussion.

The order of the trial court overruling appellant’s plea of privilege is affirmed.

Affirmed.


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    Luke CARO et ux., Appellants, v. Clyde HAYWOOD, Appellee.
    No. 12978.
    Court of Civil Appeals of Texas, Austin.
    July 25, 1979.

      Charles S. Black, Jr., Law Offices of Bobby R. Taylor, Austin, for appellants.
    James T. Odiorne, Bastrop, for appellee.
   SHANNON, Justice.

Appellee Clyde Haywood sued appellants Luke Caro and Mae S. Caro, husband and wife, in the district court of Bastrop County asserting a claim for a liquidated money demand based upon written contract, Tex. R.Civ.P. 185 (1976), and for attorney’s fees pursuant to Tex.Rev.Civ.Stat.Ann. art 2226 (Supp.1978). After trial to the court, judgment was entered for appellee for $900.00 on the verified account and for attorney’s fees of $100.00.

Appellee’s petition contains the usual allegations found in a Rule 185 pleading. The “itemized and verified” account is attached to the petition, upon which appellee prayed for attorney’s fees pursuant to art. 2226.

Appellants filed a verified answer to the petition. The answer, however, did not deny the account in the manner required by Rule 185.

Although appellants failed to file an answer in conformance with Rule 185, appel-lee put on proof of his claim. Appellants make no contention on appeal that appellee, by going forward with proof, waived his right to rely upon appellant’s failure to properly deny the verified account.

The evidence was that the parties entered into a written contract for repairs and improvements to appellants’ house. Appellee was to be paid with the proceeds from an F.H.A. loan obtained by appellants. Although the F.H.A. representative approved appellee’s work upon completion, appellants were not satisfied and refused to co-sign the F.H.A. check.

The judgment in this appeal will be affirmed if it can be sustained on any legal theory supported by the evidence, since the district court, which tried the case without benefit of a jury, was not requested to file, and did not file, findings of fact and conclusions of law. Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962).

Appellants argue that appellee’s action was not properly brought as a suit on a sworn account under Rule 185, and that the judgment so entered was not authorized even though their denial was insufficient. Appellants insist that appellee’s action was on a “special contract” and that, as such, could not be brought under Rule 185.

Assuming for argument that appellee’s action rested upon a “special contract,” nevertheless, the judgment for the verified account was proper under Rule 185. The statutory predecessor of Rule 185 applied by its terms only to actions or defenses founded upon “open” accounts. The Supreme Court in McCamant v. Batsell, 59 Tex. 363 (1883), held that the statute did not refer to transactions resting upon “special contracts.” The statute was amended after the holding in McCamant v. Batsell, supra, to include an action founded upon “any claim for a liquidated money demand based upon written contract or founded on business dealings between the parties . . ”

Likewise, Rule 185 presently includes actions or defenses founded on “. any claim for a liquidated money demand based upon written contract or founded on business dealings between the parties . . ”

Rule 185 is applicable to a transaction between parties resting upon special contract so long as the transaction is one of those expressly mentioned in the Rule. Guay v. Schneider, Bernet & Hickman, Inc., 341 S.W.2d 461 (Tex.Civ.App.1960), writ ref’d n. r. e., per curiam, 344 S.W.2d 429 (Tex.1961); Hollingsworth v. Northwestern National Ins. Co., 522 S.W.2d 242 (Tex.Civ. App.1975, no writ); Larcon Petroleum, Inc. v. Autotronic Systems, 576 S.W.2d 873 (Tex. Civ.App.1979, no writ); Carr Well Service, Inc. v. Skytop Rig Company, 582 S.W.2d 500 (Tex.Civ.App. — El Paso, 1979). In the case on appeal, the contract to repair appellants’ house gave rise to a “claim for liquidated money demand based upon written contract,” a transaction specifically provided for by Rule 185. Because appellee’s suit on the verified account was authorized by Rule 185, and because appellants failed to deny the account in the terms required by Rule 185, the judgment will be affirmed. McDonald v. Newlywed's Inc., 483 S.W.2d 334, 337 (Tex.Civ.App.1972, writ ref'd n. r. e.).

If, indeed, appellee’s action were based upon a “special contract,” attorney’s fees would not be recoverable pursuant to art. 2226 under the rule announced in Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 (1958). That rule restricts recovery of attorney’s fees on sworn accounts to “transactions between persons, in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing (which may include only one transaction between the parties).” The Supreme Court in Meaders held that “sworn account,” as referred to in Tex.Rev.Civ.Stat.Ann. art. 2226, “does not mean transactions between parties resting upon special contract.” Guay v. Schneider, Bernet & Hickman, Inc., supra.

We have examined the statement of facts and have found no evidence to support entry of the judgment for attorney’s fees. Because there was no evidence of presentment of the claim nor other evidence to support the judgment for attorney’s fees, that part of the judgment may not stand irrespective of whether appellee’s claim was based on a “special contract.” Accordingly, it is unnecessary to determine if appellee’s claim was based on a “special contract.”

That part of the judgment awarding attorney’s fees is reversed and judgment is here rendered that appellee take nothing as to attorney’s fees; in all other respects, the judgment is affirmed.

Reversed and Rendered in Part, and in Part, Affirmed.

      . Appellee’s claim originated before Tex.Rev. Civ.Stat.Ann. art. 2226 was amended in 1977 to include claims founded on oral or written contracts.


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    Mary D. FINGER, Executrix of the Estate of Jean Droppleman, Appellant, v. SCHOOL SISTERS OF the THIRD ORDER OF ST. FRANCIS, Appellee.
    No. 12984.
    Court of Civil Appeals of Texas, Austin.
    July 25, 1979.
    Van Thompson, Jr., Sugarland, Frank L. Scofield, Austin, for appellant.
    Timothy L. Hoffman, Smith, Jarrell & Associates, Amarillo, for appellee.
   SHANNON, Justice.

Appellee, School Sisters of the Third Order of St. Francis, filed suit in the district court of Travis County seeking a declaratory judgment construing the will of Rose Gordon, deceased. Appellant is Mary D. Finger, Executrix of the Estate of Jean Droppleman. On appellee’s motion, the district court entered summary judgment declaring that the will created a trust in ap-pellee’s favor.

We will reverse the judgment and remand the cause to district court.

On August 31, 1967, Rose Gordon died leaving a will which was duly probated. Paragraph IIIB of the will provided:

“B. To JEAN DROPPLEMAN, if she shall survive me, all of my oil, gas and mineral properties, royalty and mineral interests subject to the following conditions imposed upon her ownership of said oil, gas and mineral properties, royalty and mineral interests, to-wit: That said JEAN DROPPLEMAN pay to or for the benefit of the SCHOOL SISTERS of the THIRD ORDER of ST. FRANCIS at the Sancta Maria Convent, Panhandle, Texas, each month two-thirds (¾) of any income received from such oil and gas properties of any nature, including, but not limited to bonuses, delay rentals, royalties and production payments of any kind and nature, In the event that JEAN DROP-PLEMAN, in the future, at her sole discretion, sells any of said oil, gas and mineral properties, royalties or mineral interests she shall pay to or for the benefit of the SCHOOL SISTERS of the THIRD ORDER of ST. FRANCIS at the Sancta Maria Convent, two-thirds (⅜) of such sales price. In the event that JEAN DROPPLEMAN should not survive me, I hereby devise and bequeath all of my oil, gas and mineral properties, royalty and mineral interests to the SCHOOL SISTERS of the THIRD ORDER of ST. FRANCIS at the Sancta Maria Convent, Panhandle, Texas.

Jean Droppleman made payments to ap-pellee during her lifetime. After her death on November 27, 1976, the executrix of the Droppleman estate refused to continue the payments to appellee, claiming that the bequest in the Gordon will created a fee simple subject to a condition subsequent that had been fulfilled.

According to the unchallenged statement in appellee’s post submission brief, the School Sisters of the Third Order of St. Francis is a religious society staffing nondenominational nursing homes and children’s homes.

The district court entered summary judgment declaring that the testatrix’s use of the provision, “[sjubject to the following [sic] imposed upon her ownership of said oil, gas and mineral properties,” created a trust in favor of appellee.

The Attorney General of Texas was not joined as a party in district court. The absence of that official was not raised by any party during the trial of the cause nor in the briefs or arguments in this Court. In response to this Court’s post submission inquiry, both parties take the position that the Attorney General was not required to be made a party.

Texas Rev.Civ.Stat.Ann. Art. 4412a provides in part as follows:

“Section 1. As used in this Article the term ‘charitable trust’ includes all gifts and trusts for charitable purposes. (Emphasis added)
“Sec. 2. For and on behalf of the interests of the general public of this state in such matters, the Attorney General shall be a necessary party to and shall be served with process, as hereinafter provided, in any suit in judicial proceeding, the object of which is:
“c. To construe, nullify or impair the provisions of any instrument, testamentary or otherwise, creating or affecting a charitable trust .
“Sec. 4. A judgment rendered in any suit or judicial proceeding referred to in this Article without service or process upon the Attorney General shall be void and unenforceable
“Sec. 6. It is the purpose of this Article to resolve and clarify what is thought by some to be uncertainties existing at common law with respect to the subject matter hereof . . . ”

The act, as a whole, leaves no doubt of the legislative intent to require the Attorney General to be made a party to litigation within its ambit. Akin Found. v. Trustees, Preston Road Ch. of Christ, 367 S.W.2d 351 (Tex.Civ.App.1963, no writ). In such litigation, the absence of the Attorney General renders the judgment void. Moore v. Allen, 544 S.W.2d 448 (Tex.Civ.App.1976, no writ).

We have concluded that the facts of this case bring it within the scope of Art. 4412a. Appellee’s suit for declaratory judgment was, in the terms of the statute, one to construe the provisions of an instrument affecting a gift or trust for charitable purposes. The term “charitable purposes” has a definite ascertainable meaning in law. Boyd v. Frost Nat. Bank, 145 Tex. 206, 196 S.W.2d 497 (1946). Gifts made for “charitable purposes” include, among others, transfers made for the relief of poverty, the advancement of education, and the promotion of health. Boyd v. Frost Nat. Bank, supra. Unrestricted gifts to religious organizations have been held to be for charitable purposes. Powers v. First Nat. Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273 (Comm.App.1942, opinion adopted); Moore v. Allen, supra. Likewise in Powers, an unrestricted gift to a nondenominational orphanage was determined to be for charitable purposes.

Appellee, the School Sisters of the Third Order of St. Francis, is a religious society staffing nondenominational nursing homes and children’s homes. Under the authorities above discussed, the gift to ap-pellee was for charitable purposes.

Failure to join the Attorney General in the case at bar was fundamental error that we must recognize. Moore v. Allen, supra ; Akin Found. v. Trustees, Preston Road Ch. of Christ, supra ; and In Re Estate of Bourland v. Hanes, 526 S.W.2d 156 (Tex.Civ.App. 1975, writ ref’d n. r. e.)

The judgment is reversed and the cause is remanded to the district court with instructions that appellee have a reasonable time to effect the joinder of the Attorney General of Texas as a party to the suit. Moore v. Allen, supra; Akin Found. v. Trustees, Preston Road Ch. of Christ, supra.


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    Ronald BEYER and Angela Beyer, Appellants, v. David DIAZ, Brenda Starr Diaz, and Dixie Marie Hensley, Appellees.
    No. 20070.
    Court of Civil Appeals of Texas, Dallas.
    July 30, 1979.

      J. Preston Brashear, III, Garland, for appellants.
    Burt Barr, Dallas, L. L. Geren, Groesbeck, for appellees.
    Before AKIN, ROBERTSON and HUM-PHREYS, JJ.
   HUMPHREYS, Justice.

This is a motion by appellees to dismiss this appeal. Appellees filed pleas of privilege in a suit affecting the parent-child relationship, and the pleas were sustained. The question is whether we must dismiss this appeal because the proceeding below was not an appealable plea of privilege governed by Tex.R.Civ.P. 86-89, but instead was a non-appealable transfer proceeding governed by Tex.Fam.Code Ann. § 11.06 (Vernon 1975). We hold that it was a transfer proceeding and thus not appeala-ble. Accordingly, we dismiss the appeal.

Appellants brought suit to terminate the parental rights of a mother and the probable father. The maternal grandmother was also joined as a person with possible interest in the child. The appellees filed separate pleas of privilege to be sued in Limestone County, the county of their residence, and these pleas of privilege were sustained. Appellees now contend that their pleas of privilege were actually motions for transfer under the Texas Family Code. Appellants argue that these should be considered pleas of privilege because they were so considered by the parties an'd the court below. They also argue that the appellees are now es-topped from claiming these are motions to transfer because they successfully asserted that these were pleas of privilege. below.

Section 11.06(a) of the Family Code provides:

If venue is improperly laid in the court in which a suit affecting the parent-child relationship is filed, and no other court has continuing jurisdiction of the suit, the court, on the timely motion of any party other than the petitioner, and on a showing that venue is proper in another county, shall transfer the proceeding to the county where venue is proper.

The court may transfer also for the convenience of the parties. Section 11.06(f) declares “[a]n order transferring or refusing to transfer the proceeding is not appeala-ble.” The transfer procedures in section 11.06 were designed to supplant the regular venue rules in the Texas Rules of Civil Procedure. Brown v. Brown, 566 S.W.2d 378, 380 (Tex.Civ.App. — Corpus Christi 1978, no writ); Rogers v. Rogers, 536 S.W.2d 442, 443-44 (Tex.Civ.App. — Houston [14th Dist.] 1976, no writ). In Brown, the mother’s plea of privilege was denied and she appealed. The court stated, “the mother’s plea of privilege is a misnomer and should properly be denominated as a motion to transfer the cause . . . 566 S.W.2d at 380. The appeal was dismissed because a transfer order is not appealable. Similarly, we hold that the pleas of privilege here were motions to transfer and that the grant of the tranfers is non-appealable.

In support of their contention that the order is appealable, appellants cite Adair v. Patterson, 551 S.W.2d 110 (Tex.Civ.App.— Houston [1st Dist.] 1977, no writ), which affirmed a denial of a husband’s plea of privilege in a suit by his former wife for increased child support. Although the court followed the venue rules in Tex.Fam. Code Ann. § 11.04 (Vernon 1975), it did not discuss the transfer rules or the question of appealability. Apparently, the issue was not presented. Consequently, we do not regard Adair as supporting the proposition that venue transfers in suits affecting the parent-child relationship are appealable.

We also reject appellants’ estoppel argument. Appellants may have a remedy through mandamus for an erroneous ruling on motion to transfer, Cassidy v. Fuller, 568 S.W.2d 845, 847 (Tex.1978), or they can appeal on this ground after trial on the merits. They have not relied to their detriment on appellees’ designation of their motions as pleas of privilege. They still have the same remedies that they would have had if the hearing had been properly termed a hearing on motions to transfer. Additionally the parties relied on the venue rules of Tex. Fam.Code Ann. § 11.04 in this proceeding and were therefore not misled by the improper designation of the motions as pleas of privilege.

Appeal dismissed.