author: COULSON, Justice.

text:
    Salvador GONZALEZ et al., Appellants, v. R. Wayne MANN et al., Appellees.
    No. B2010.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 16, 1979.
    Rehearing Denied June 13, 1979.

      Jack Pasqual, Samuel C. Fried, Law Offices of Pat Maloney, San , Antonio, for appellants.
    William H. White, H. Wayne Gillies, Law Offices of H. Wayne Gillies, Houston, for appellees.
    Before J. CURTISS BROWN, C. J., and COULSON and CIRE, JJ.
   COULSON, Justice.

This is an appeal by Salvador Gonzalez and Pedro Gonzalez, plaintiffs below, from an order of the trial court dismissing their cause of action. We reverse the judgment of the trial court and remand the cause for trial.

The procedural history of this case is complex. Plaintiffs filed suit (the original suit) in Zavala County against defendants seeking various remedies arising from an alleged breach of a contract for the sale of real estate. On sustaining of defendants’ plea of privilege the original suit was transferred to the 129th District Court of Harris County. Defendants served interrogatories on plaintiffs pursuant to Tex.R.Civ.P. 168. Upon plaintiffs’ failure to make timely answer to such interrogatories, defendants sought and obtained an order from that trial court compelling plaintiffs to answer. Upon plaintiffs’ failure to answer within the ten days provided in that order, the court entered judgment dismissing the original suit “with prejudice to the rights of Plaintiffs to ever assert the same or any other cause of action arising from the subject matter of this suit against any one or all of the. Defendants. . . .”

The plaintiffs did not appeal the dismissal of the original suit but instead filed an identical suit (the second suit) in the 152nd District Court of Harris County. The defendants filed a plea in abatement in the second suit asserting that the previous judgment of dismissal, “with prejudice” in the original suit was res judicata of the issues in the second suit. The trial court sustained the plea in abatement, dismissed the second suit and entered a take-nothing judgment. Plaintiffs appealed to this court and we remanded the second suit to the 152nd District Court, holding that the defense of res judicata could not be raised in a plea in abatement but must be raised by a plea in bar and should be presented in a conventional trial on the merits or in a summary judgment proceeding.

After the decision of the 152nd District Court dismissing plaintiffs’ second suit on the ground of res judicata, plaintiffs had filed a bill of review in the 129th District Court attacking the validity of that court’s dismissal of their original suit with prejudice for failure to comply with the discovery order. On remand by this court of the second suit to the 152nd District Court, the defendants filed a motion for summary judgment. That court ordered another dismissal of the plaintiffs’ second suit, reciting that it was without jurisdiction to hear the case “by reason of the Bill of Review pending on the same issues between the same parties in the 129th Judicial District Court of Harris County, Texas . . . .” Plaintiffs appeal from the last judgment of dismissal by the 152nd District Court of the plaintiffs’ second suit.

The primary question presented in this appeal is whether the bill of review pending in the 129th District Court operated to deprive the 152nd District Court of jurisdiction over the second suit. We hold that it did not. The general rule in Texas is that the court in which suit is first filed acquires dominant jurisdiction, to the exclusion of other coordinate courts. Any subsequent suit must be dismissed if that court is properly informed of the pendency of the prior suit. Curtis v. Gibbs, 511 S.W.2d 263 (Tex.Sup.1974). The original suit filed by plaintiffs was dismissed with prejudice on April 28, 1975 by the 129th District Court. No appeal was taken from that judgment- and it therefore became final, under rule 329b, Tex.R.Civ.P., thirty days after that date. Plaintiffs’ second suit was filed in the 152nd District Court on July 10, 1975, some months after the judgment of the 129th District Court in the original suit had become final. Thus when the second suit was filed in the 152nd District Court there was no prior case pending involving the same issues and parties in any coordinate court. Jurisdiction was therefore proper in the 152nd District Court and this jurisdiction continues throughout the pendency of this law suit, dating from the original date of its filing, July 10, 1975.

The 152nd District Court handed down its first order of dismissal in the second suit on February 9, 1976. Appeal was taken from that judgment, a remand was ordered by the appellate court and a new hearing was held on the second suit which also ended in an order of dismissal on July 25, 1978. The order dated the 25th day of July 1978, dismissing the second suit is before us on appeal by the plaintiffs. No order of the 152nd District Court pertaining to the second suit has yet become a final judgment because appeal has been taken therefrom and no final disposition by an appellate court has resulted. Therefore this case remains a pending case and has been pending from July 10, 1975.

Plaintiffs filed their bill of review attacking the judgment of the 129th District Court on February 19, 1976. A bill of review presumes the existence of a judgment which has become final by reason of the expiration of periods allowed for appeal. “By its very nature a bill of review is a separate suit seeking to set aside a judgment which has become final. [Citations omitted.] The mere filing of a bill of review does not affect the finality of the judgment which is sought to be set aside.” Schwartz v. Jefferson, 520 S.W.2d 881 (Tex.Sup.1975). As an independent suit attacking a final judgment, a bill of review does not revive the prior cause, and, for purposes of determining the date of filing, would date from the filing of the bill of review itself and not from the date of filing of the case which led to the judgment attacked in that bill of review. Thus the case before us, from the 152nd District Court, was filed before the bill of review, and there was no case pending in any other court at that time which would serve to deprive the 152nd District Court of jurisdiction. That court’s dismissal of this cause for want of jurisdiction was error, and we reverse that judgment and remand the cause to the lower court for trial.

In light of our remand of this case for trial, we consider the propriety of the original action of the 129th District Court in dismissing plaintiffs’ original suit with prejudice for failure to comply with a discovery order. Rule 168, Tex.R.Civ.P. deals with Interrogatories to Parties and provides for a party to apply to the court for an order to compel answers to interrogatories. It further provides that a refusal to comply with such order authorizes the court to act “as provided in paragraphs (a) and (b) of Rule 215a.” Tex.R.Civ.P. 168. Paragraph (b) of Rule 215a states that if the party refuses to comply with a discovery order the court “may make such orders in regard to the refusal as are just, and among others, those permitted by Rule 170.” Tex.R.Civ.P. 215a(b).

Under rule 170(c) Tex.R.Civ.P. the court is authorized to make “an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.” Rule 170, although it does authorize a court to dismiss the action for failure to comply with an order compelling discovery, does not give a court authority to make such dismissal “with prejudice”. Texhoma Stores, Inc. v. American Central Ins. Co., 398 S.W.2d 344 (Tex.Civ.App.-Tyler 1966, writ ref’d n. r. e. per curiam 401 S.W.2d 593). We believe that the authority given to the trial court by rule 170 to dismiss the action is limited to the authority to order a “dismissal” as it is commonly understood: “It is elementary that a dismissal is in no way an adjudication of the rights of parties; it merely places the parties in the position that they were in before the court’s jurisdiction was invoked just as if the suit had never been brought.” Crofts v. Court of Civil Appeals for the 8th Sup. Judicial District, 362 S.W.2d 101, 104 (Tex.Sup.1962). A dismissal “with prejudice” on the other hand does constitute an adjudication of the rights of the parties and is therefore a much harsher sanction than a mere dismissal. We agree with the Texhoma court, supra, that rule 170 does not authorize a dismissal “with prejudice” as a sanction for failure to comply with a discovery order. See also, our opinion in Phillips v. Vinson Supply Co., 581 S.W.2d 789 (Tex.Civ.App.-Houston [14th Dist.] 1979).

Under our findings therefore the words “with prejudice” are to be regarded as mere surplusage and the effect of the judgment of the 129th District Court is that of a mere dismissal of plaintiffs’ case. As such it could not bar the refiling and prosecution of the same cause of action in the 152nd District Court. The judgment of the trial court is reversed and we remand the cause to that court for trial.

CIRE, J., not participating.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    Thomas L. TATE et al., Appellants, v. Joe D. WIGGINS et al., Appellees.
    No. 6018.
    Court of Civil Appeals of Texas, Waco.

    May 24, 1979.
    Rehearing Dismissed for Want of Jurisdiction June 28, 1979.

      Thomas W. George and Randy P. Parker, Mitchell, George & Belt, Austin, for appellants.
    J. Ritchie Field, Crews & Field, Conroe, for appellees.
   HALL, Justice.

The plaintiffs-appellants in this case are Thomas L. Tate, David Earl Crow, Homer Crow, W. B. Jennings, John V. Smith, James M. Pinder, Johnny Brewer, T. H. Carter, Lorraine Voss, T. J. Tutor, and W. W. Tutor. The defendants-appellees are Joe D. Wiggins, Russell Wiggins, N. K. Dillon and Wiggins Enterprises.

The suit was filed originally in December, 1976, by the first five plaintiffs listed above. The other six, which included the plaintiffs T. J. Tutor and W. W. Tutor, joined the suit in February, 1978.

Plaintiffs alleged that defendants were the developers and sellers of lots in a subdivision of land known as the Cade Lake Estates located in Burleson County, Texas; that plaintiffs were individual purchasers of lots in the subdivision from defendants; that during the parties’ negotiations defendants made fourteen specified promises and warranties relating to the improvements and conditions of the subdivision which materially induced plaintiffs’ purchases of the lots; and that the promises and warranties were false, misleading, and deceptive, and breached by defendants.

Among other remedies, plaintiffs sought recovery of actual and exemplary damages and attorneys’ fees under the Deceptive Trade Practices — Consumer Protection Act, V.T.C.A., Bus. & C. § 17.41 et seq.; and recovery of damages for breach of contract, or, alternatively specific performance of the breached warranties. Their individually-listed actual damages for the asserted deceptive trade practices, which they alleged under the Act should be trebled, ranged from $15,897.00 to $25,655.00. Individual damages for breach of contract ranged from $897.00 to $10,655.00. Each sought recovery of attorneys’ fees in the amount of $10,000.00 for the trial of his case.

Among other defenses, defendants alleged that plaintiffs should not recover under the Deceptive Trade Practices Act because defendants “had no written notice of the various Plaintiffs’ complaints before this suit was filed.”

The case was tried to a jury. The only findings made by the jury which would support a recovery by any of the plaintiffs under the Deceptive Trade Practices Act were the findings that defendants represented to plaintiffs T. J. Tutor and W. W. Tutor that brush would be cleared from the surface of the lakes as part of the development of the subdivision; that the representation was false, misleading, or deceptive; that the misrepresentation resulted “in material inconvenience or financial loss” to the Tutors; that $1,400.00 would reasonably compensate W. W. Tutor, and $1,000.00 would reasonably compensate T. J. Tutor; and that $14,500.00 “would reasonably compensate Plaintiffs’ attorneys [for the] preparation and trial of this case.” Related to those awards of damages under the Deceptive Trade Practices Act, the jury also found that defendants did not have written notice of T. J. Tutor’s complaints “Before this suit was filed,” but failed to find that defendants did not have written notice of W. W. Tutor’s complaints. The jury also awarded each of those two plaintiffs $500.00 for exemplary damages.

Related to plaintiffs’ action for breach of contract by defendants, the jury found that defendants represented and promised that the subdivision would have the following improvements and characteristics; that the promises were material and induced plaintiffs’ purchases of the lots; and that defendants failed to perform the promises:

1. A private area for the use of lot owners and designated guests would be provided in Cade Lake Estates.
2. A park for the use of lot owners and designated guests would be provided in Cade Lake Estates.
3. A park having picnic tables and barbecue pits would be provided in Cade Lake Estates.
4. A sand beach along the shore of the lake swimming area would be provided in Cade Lake Estates.
5. One or more boat ramp or boat launch facilities would be constructed as part of the development of Cade Lake Estates.
6. The brush would be cleared from the surface of the lakes as part of the development of Cade Lake Estates.

However, the jury failed to find that the defendants’ failure to fulfill those covenants resulted in injury to any of the plaintiffs.

The verdict was received by the court. Thereafter, plaintiffs moved for judgment on the verdict. To the extent pertinent to this appeal, plaintiff sought the following recoveries in the motion: $4,200.00 for W. W. Tutor and $3,000.00 for T. J. Tutor, being for each three times the actual damages awarded him by the jury; $500.00 each for exemplary damages as found by the jury; attorneys’ fees in the amount of $14,-500.00 allowed by the jury; an order requiring defendants to specifically perform the breached covenants relating to the six improvements and characteristics set forth above; and for court costs.

Defendants did not file any prejudgment motions.

Eventually, the following judgment was rendered by the court: W. W. Tutor was awarded a recovery of $1,900.00 (being his actual damages of $1,400.00 plus $500.00 exemplary damages) and his court costs; T. J. Tutor was awarded $1,500.00 (being his actual damages of $1,000.00 plus $500.00 exemplary damages) and his court costs; an award for attorneys’ fees was expressly denied; court costs were assessed in favor of defendants against all plaintiffs except the Tutors; and no other relief was allowed any of the parties.

No post-judgment motion was filed by any party.

Plaintiffs brought this appeal. Defendants do not seek affirmative relief on appeal. Plaintiffs make these contentions:

1. Under the provisions of § 18.50 of the Deceptive Trade Practices Act the court should have trebled the actual damages awarded by the jury to W. W. Tutor and T. J. Tutor;
2. Under the provisions of Rule 301, Vernon’s Tex. Rules Civ.Proc., the court should have awarded plaintiffs judgment for the attorneys’ fees found by the jury;
3. The court should have ordered specific performance of the covenants the jury found defendants breached; and,
4. Under the provisions of Rule 131, Vernon’s Tex. Rules Civ.Proc., court costs should have been awarded to all plaintiffs.

Excepting the evidence relating to attorneys’ fees, the record is before us without a statement of facts.

treble damages and attorneys’ fees

It is provided in § 17.50(b)(1) of the Deceptive Trade Practices Act that a plaintiff who prevails under the Act “may obtain: three times the amount of actual damages plus court costs and attorneys’ fees reasonable in relation to the amount of work expended.” § 17.50A, which became effective May 23, 1977, limits the plaintiff’s damages under certain circumstances and reads in part as follows: “In an action brought under this [Act], actual damages only and attorney’s fees reasonable in relation to the amount of work expended and court costs may be awarded where the defendant: ... (2) proves that he had no written notice of the consumer’s complaint before suit was filed.” In the case of Woods v. Littleton, (Tex.1977) 554 S.W.2d 662, 671, our Supreme Court construed § 17.50(bXl) to require the plaintiff’s actual damages to be trebled absent proof of any defensive circumstance provided in § 17.-50A. As we stated earlier, the plaintiffs W. W. Tutor and T. J. Tutor did not file their action in this case until February, 1978, and it was therefore subject to the provisions of § 17.50A. The jury found that defendants did not have written notice of T. J. Tutor’s complaint before the Tutors’ suit was filed, but failed to find that defendants did not have written notice of W. W. Tutor’s complaints. Under those findings and §§ 17.-50(b)(1) and 17.50A of the Act, W. W. Tutor is entitled to treble damages, but T. J. Tutor is not. Accordingly, the trial court erred in failing to treble W. W. Tutor’s actual damages.

We hold also that the court erred in disregarding the jury’s award of $14,500.00 for attorneys’ fees. Under § 17.50(b)(1) of the Act, supra, the award of attorneys’ fees was an additional, material element of the Tutors’ damages which they were entitled to recover in connection with their recoveries of actual damages. The reason assigned in the judgment for disregarding the award was that “it would seem improper” to allow attorneys’ fees because only two of the plaintiffs were awarded damages by the jury and those awards were for “mere fractions of the amounts sought.”

Rule 300, Vernon’s Tex. Rules Civ.Proc. provides that, “Where a special verdict is rendered . . . the court shall render judgment thereon unless set aside or a new trial is granted, or judgment is rendered notwithstanding verdict or jury finding under these rules.” Rule 301 requires the trial court to conform its judgment “to the pleadings, the nature of the case proved and the verdict,” and “give the party all the relief to which he may be entitled either in law or equity.” However, the rule contains the proviso that “upon motion and reasonable notice” the court may render judgment notwithstanding the verdict if a directed verdict would have been proper or may disregard any jury finding that has no support in the evidence.

Defendants do not contend the jury’s finding on attorneys’ fees is in irreconcilable conflict with another finding, and it is not. Under Rules 300 and 301, without a successful prejudgment motion to disregard the finding, it was the court’s ministerial duty to render judgment on the finding in favor of the two prevailing plaintiffs and the matter involved no judicial or discretionary powers. Traywick v. Goodrich, (Tex.1963) 364 S.W.2d 190, 191; Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970, 972 (1936). Stated another way, under the record the court “ha[d] no arbitrary right to refuse to enter judgment on a verdict which constitutes a finding on all the facts tendered in the pleadings necessary to the rendition of judgment.” Cortimeglia v. Davis, 116 Tex. 412, 292 S.W. 875, 876 (1927). specific performance

Plaintiffs assert that in view of the jury’s unchallenged findings that defendants breached their promises to provide the subdivision improvements and that the covenants were material to the parties’ contracts, plaintiffs are entitled as a matter of law under Rules 300 and 301 to an order requiring defendants to perform the covenants. We disagree.

The remedy of specific performance is equitable in nature and is governed by the principles of equity. A party suing for specific performance of a contract is not entitled to the relief as a matter of right. The granting or withholding of the relief rests in the sound discretion of the court under all the circumstances of the case. Steves v. United Services Automobile Association, 459 S.W.2d 930, 932, 937 (Tex.Civ.App.—Beaumont 1970, writ ref’d n. r. e.); Ferguson v. von Seggern, 434 S.W.2d 380, 384 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.).

As we have said, plaintiffs brought forward only a partial statement of facts. Without a complete statement of facts we cannot know the equities in the case which may relate to plaintiffs’ plea for specific performance, and therefore we cannot hold the court abused its discretion as a matter of law in failing to grant the relief. Schroeder v. Brandon, 141 Tex. 319, 172 S.W.2d 488, 491 (1943).

court costs

Rule 131, Vernon’s Tex. Rules Civ. Proc. provides, “The successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided.”

Plaintiffs other than the Tutors argue that although they did not obtain jury findings sufficient to support a judgment in their favor, they were nevertheless “successful parties” within the meaning of Rule 131, because they did secure several favorable findings of deceptive acts and practices and breaches of contract by defendants; and that, accordingly, the court erred in failing to award them costs of court. We reject that argument. The term “successful party” as used in Rule 131 means “one who obtains a judgment of a competent court vindicating a claim of right, civil in nature.” Siepert v. Brewer, 433 S.W.2d 773, 775 (Tex.Civ.App.—Texarkana 1968, writ ref’d n. r. e.); Stewart v. Group Health & Life Ins. Co., 555 S.W.2d 531, 534 (Tex.Civ.App.—Waco 1977, no writ).

The judgment is modified to provide that W. W. Tutor shall recover $4,700.00 for his damages from defendants, and that in addition to their respective damages of $4,700.00 and $1,500.00 the Tutors shall also recover $14,500.00 attorneys’ fees from defendants. In all other particulars the judgment is affirmed.

Costs of this appeal are assessed against defendants.


author: DOYLE, Justice.

text:
    V. Ray DAVIS, Appellant, v. EQUILEASE CORPORATION, Appellee.
    No. 17382.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 24, 1979.

      Mandell & Wright, Terrell W. Oxford, Houston, for appellant.
    Lapin, Totz & Mayer, William A. Petersen, Jr., Houston, for appellee.
    Before COLEMAN, C. J., and PEDEN and DOYLE, JJ.
   DOYLE, Justice.

This suit involves a summary judgment awarded to Equilease Corporation, appellee, arising from a liquidated claim based on the breach of a lease agreement with V. Ray Davis, appellant.

In 1975 appellant executed a lease agreement with appellee to rent certain equipment described as, “1 Apeco 200 Bond” and explained in appellee’s brief as being a copy machine. The lease was non-cancellable for a 60 month term and provided that in the event of default by the lessee for a period of ten days, lessor could elect either to retake immediate possession of the equipment, sell it and apply the proceeds to delinquent rentals and costs, or accelerate the balance of the rentals payable under the lease, thereby requiring prepayment forthwith upon notice and demand. The lease further provided that in the event of litigation, that the lessee would pay attorney’s fees in an amount equal to twenty percent (20%) of the balance of the rentals.

Subsequently, appellant defaulted on his payments and appellee, after demanding payment, instituted suit to recover the balance of the rentals due. In preparation for trial, appellee requested admissions of appellant which adduced the following facts:

1. That the exhibits attached to Plaintiff’s Original Petition are true and correct copies of the leases in question.
2. That defendant, Davis, executed said agreements.
3. That plaintiff is the party entitled to sue on said agreements.
4. That defendant defaulted on his payment under said agreements.
5. That prior to filing this lawsuit, demand was made on defendant to pay plaintiff.
6. That defendant did not make such payment.
7. That defendant did not know who the holder and owner of the leases were.
8. That the defendant did not know whether the correct balance on the leases was $5,706.74.

Appellee thereafter filed a motion for summary judgment with two affidavits attached in support of its motion. One affidavit was verified by John Lettiere, Vice President of appellee and the second was verified by appellee’s attorney, William Petersen, requesting attorney’s fees.

Appellant did not file any response to the motion for summary judgment, nor did he file any other response or pleading aside from his original answer, which consisted only of a general denial. Appellant did not plead any affirmative defenses.

After considering the pleadings, admissions, motions and affidavits, the trial court granted appellee’s summary judgment, rendering judgment for $5,706.74, stipulated attorney’s fees and costs of court. From this judgment appellant has appealed setting out five points of error and appellee has challenged this court’s jurisdiction to consider such- appeal.

Appellee contends this court does not have jurisdiction of this case because the transcript was not timely filed. We find this contention to be correct. The transcript should have been filed December 26, 1978. Instead, it was filed one day late on December 27, 1978. In support of his tardy filing, appellant filed a motion for extension of time to file this transcript, citing Rules 21c, 4 and 5, T.R.C.P.

Appellant’s major contention in his motion is that a legislative declaration stating December 26, 1978 “may” be taken as a Christmas holiday for state employees, implies such day is to be a holiday by popular acceptance, which holiday should be construed within the meaning of legal ho'idays as applied to Rule 4. Under appellant’s contention he should be allowed an extra day for filing. The Legislative declaration cited by appellant is found in Supplement to House Journal, H.B. 510, 1977, page V-31, a publication specifically dealing with appropriations matters in which said day was listed as a “may” take and not enumerated as a holiday. Only those days enumerated in our present statute dealing with legal holidays, article 4591, V.A.C.S., are holidays within the meaning of Rule 4. This article makes no provision for the Legislature to declare a holiday by public acceptance. At one time the Legislature did provide for a holiday by common acceptance for the banks in this State, as will be discussed, but since that time the Legislature and the courts have strictly held that only those days enumerated in article 4591 are legal holidays as applied to Rule 4. The attorney general reiterated this point in Tex.Atty.Gen. Op. No. H-845(1976), stating that a “legal holiday” must be included within the enumeration of legal holidays in article 4591.

In support of appellant’s contention, he cites the case of Blackman v. Housing Authority of City of Dallas, 152 Tex. 21, 254 S.W.2d 103 (Tex.1953). When this case was decided in 1953, our present statute, article 4591, was followed by section 4591d. This extra section was enacted as an emergency safeguard measure in 1947, for the banks and trust companies of this state wherein the legislature stated:

“banks and trust companies of this State are at this time uncertain as to the liability they might incur by closing on certain days commonly celebrated as holidays but not designated in such Article as legal holidays, creates an emergency . . . ” (Act of May 22, 1947, 50th Leg., Reg. Sess., p. 424, Ch. 230 § 2)

The court held that where article 4591d allowed the banks to close on certain days commonly celebrated as holidays, it would extend this legislative declaration to Rule 4 and allowed the appeal.

Subsequently, article 4591d was transferred to the banking statutes and re-written into present day article 342-910a, V.A.C.S. Where article 4591d was once appropriate for deciding a “legal holiday,” it is now limited to holidays for banking purposes. Even in reading 342-910a, banks may no longer close for holidays commonly celebrated by the public, but must follow strict procedures in deciding what days will be celebrated as holidays.

Cases following Blackman limit it to the time period during which article 4591d was an appropriate part of that statute. In Smith v. Harris County-Houston Ship Channel Navigation District, 160 Tex. 292, 329 S.W.2d 845 (1959), the court stated:

The application of Rule 4 as interpreted in the Blackman case was reasonably certain in the light of the statutes then in force, but this will not be true if such interpretation is now extended to include any day in the year which has ever been recognized by the Legislature as a general holiday by popular acceptance. In our opinion, it would be unwise to go that far and the question submitted by the Court of Civil Appeals is answered in the negative. Under our present statutes, only the days designated in Article 4591 are legal holidays within the meaning of Rule 4.”

The authorities are now virtually uniform in holding that only holidays enumerated in the present statute, article 4591, are legal holidays within the meaning of Rule 4. Saurez v. Brown, 414 S.W.2d 537 (Tex.Civ.App.—Corpus Christi 1967, err. ref’d); Bean v. City of Arlington, 464 S.W.2d 208 (Tex.Civ.App.—Fort Worth 1971, no writ); Martinez v. State, 511 S.W.2d 934 (Tex.Cr.App.1974).

The last day for filing of the motion for extension of time in which to file the transcript being December 26, 1978, appellant’s transcript filing on December 27, 1978, was late, since such filing was not within the 15 days required by Rule 21c. With no transcript, this court has no jurisdiction and this appeal is accordingly dismissed. Meshwert v. Meshwert, (Tex.1977) 549 S.W.2d 383; United States Fire Insurance Company v. Strickland, 547 S.W.2d 338 (Tex.Civ.App.—Dallas 1977, no writ).

Notwithstanding our holding on the question of jurisdiction, we have considered appellant’s points of error and find them without merit.


text:
    John Benton GAYLE et al., Appellants, v. Loma DIXON et al., Appellees.
    No. 17344.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 24, 1979.
    Rehearing Denied June 21, 1979.

      Ramey, Flock, Hutchins, Jeff us, McClen-don & Crawford, Mike Hatched, Tyler, for appellants.
    Perkins, Dreyer & Rather, Denver E. Perkins, Gonzales, for appellees.
   DOYLE, Justice.

John Benton Gayle, et al., (contestants) appeal from a judgment admitting to probate the 1975 will, and two codicils thereto, of B. D. Fussell (testator).

The case was transferred from the county court to district court, where it was tried to a jury on the issues of testamentary capacity and undue influence. A11 issues relative to the 1975 will and the accompanying codicils were answered favorably to Loma Dixon, et al. (proponents). Upon such verdict, judgment was rendered and the contestants have perfected this appeal.

Proponents are one of the daughters of testator and her family. The contestants are the other daughter of testator and her family, but this daughter, Doris Gayle and her husband, took a non-suit during trial, with their children remaining as contestants. Testator was divorced and his ex-wife was not a party to the law suit.

Testator executed a will in 1971 leaving his entire estate to his grandchildren by both daughters. However, he executed a subsequent will in 1975 revoking all prior wills and leaving his entire estate to proponents. He left nothing to the contestants, stating: “I am not devising any of my estate to my daughter, Mrs. Doris Gayle nor any of my estate to her children. This is not an oversight on my part. I have loaned money to Mr. and Mrs. Gayle and have also advanced money to their son, John Benton Gayle. I am of the opinion I have done enough in their behalf.” Two codicils to the will were executed, directing the proportionate sharing of estate taxes and debts and amending the prior will to the extent of leaving an 80 acre tract of land to Mary Samora (also known as Mary Rivera) on the condition she provide room, board and laundry for the testator during his lifetime. It was this 1975 will and subsequent codicils that the court admitted to probate.

The contestants’ theory, principally, was that since an automobile accident in 1963, the testator was “not of sound mind or memory or in any respect capable of making a will or codicil.” Further, they alleged the testator was unduly influenced by the proponents, Mary Samora and Hollis Massey, the testator’s attorney.

The first of contestants’ four points of error complains of the trial court’s refusal to submit contestants’ requested issues and instructions so as to include in the definition of “sound mind”, the phrase “ . he must have memory sufficient to collect in his mind the elements of the business to be transacted and to hold them long enough to perceive at least their obvious relation to each other, and to be able to form a reasonable judgment as to them. . . . ,” because under the facts of this case, said phrase constituted an essential element of “sound mind”.

The issue posed by this point is whether it is error, in a will contest where testamentary capacity is in issue, to refuse to give the ‘long form’ definition of ‘unsound mind’ in favor of the ‘short form’ definition of the term. The short form definition requires jury findings as to the following elements of testamentary capacity:

(1) sufficient ability by the testator to understand the business in which he is engaged;
(2) sufficient ability by the testator to understand the effect of his act in making the will;
(3) the capacity of the testator to know the objects of his bounty; and
(4) the capacity of the testator to understand the general nature and extent of his property.
Morris v. Morris, 279 S.W. 806 (Tex.Com.App.1927, holding approved).

The long form definition would require a finding by the jury as to a fifth element of testamentary capacity, that being whether the testator had “memory sufficient to collect in his mind the elements of the business to be transacted, and to hold them long enough to perceive, at least their obvious relation to each other, and to be able to form a reasonable judgment as to them.” Prather v. McClelland, 76 Tex. 574, 13 S.W. 543 (1890).

Contestants contend that as there was evidence in the record as to the testator’s inability to coordinate and rationally consider business transactions, the long form definition of unsound mind which would include the additional memory-judgment-perception element should have been utilized and it was error to exclude the same. We do not. agree with this contention and overrule the point of error. The basis for contestants’ argument is the suggestion by Professor Atkinson that the utilization of the short form definition occurs in those cases where this fifth element is not in controversy. Atkinson, Atkinson or Wills § 51 (2d ed.) p. 237. See also, Bailey, Texas Law of Wills § 172 (1968) p. 280, and Texas Estate Administration § 4.27 (1975). A review of the cases reveals no mandatory rule as to the utilization of either definition.

The evidence which contestants assert supports submission of an inquiry as to testator’s memory-perceptive-judgment capacity is testimony of a banker that in his opinion the testator could not transact business in a rational businesslike way and that the testator “had his mind on horses a whole lot”, .... “and we felt he was quite senile.”; and the testimony of the excluded daughter, Doris Gayle, who stated that at times the testator would blackout and be speechless; that he drank excessively and his memory “was gone”. None of this testimony was in reference to testator’s behavior on the day of the execution of the will or codicils, and nothing is in the record which would be indicative of the testator’s inability on the dates of execution, to possess a memory sufficient to collect in his mind the elements of the business to be transacted (executing the will, the effect of making the will, the natural objects of his bounty, and the general nature and extent of his property) and to hold them long enough to perceive their obvious relation to each other and form a reasonable judgment as to them. Even accepting the contestants’ assertion that the evidence is supportive so that the court should have allowed inquiry into the additional element of the definition of “unsound mind”, it cannot be said that such error, if any, was calculated to cause and probably did cause the rendition of an improper judgment. Rules 434 and 503, T.R.C.P. Texas Employers Ins. Ass’n v. McKay, 146 Tex. 569, 210 S.W.2d 147 at p. 148 (Tex.1948).

Contestants, by their second point of error, argue that the trial court should not have admitted the testimony of Ira Fussell relative to her loan transaction with John and Doris Gayle over contestants’ objection, since such testimony was hearsay and tended to materially prejudice contestants’ case. We find no merit in this contention.

By way of deposition, proponents of the will elicited testimony from the testator’s ex-wife, Ira Fussell, as to the divorce settlement between her and the testator and the subsequent loan by the ex-wife out of the proceeds of the settlement to Mr. and Mrs. Gayle. The loan was never repaid. Contestants assert it was error for the trial court to admit the testimony as it was properly objected to as hearsay.

Hearsay is a statement made out of court when such evidence is offered for the purpose of proving the truth of such statement. McCormick, Texas Law of Evidence, § 781, p. 559. Mrs. Fussell (ex-wife) was testifying to her divorce settlement and her loan to Mr. and Mrs. Gayle. These were transactions in which she was a participant and her knowledge was first hand. Testimony of this nature is not hearsay.

Further, where there is evidence of an unnatural disposition of property by a testator it may be considered as a circumstance in determining whether or not the will was a product of undue influence, Long v. Long, 133 Tex. 96, 125 S.W.2d 1034 (1939), and “it is only where all reasonable explanation in affection for the devise is lacking that the trier of facts may take this circumstance as a badge of disorder or lapsed mentality or its subjugation.” Rothermel v. Duncan, 369 S.W.2d 917 (Tex.1963). “In ascertaining whether undue influence exists or has been exerted, it is important to ascertain the mental condition of the party subjected to the influence. Acts occurring before or after or at the time of the execution of the instrument tending to throw light upon the mental condition of the party, are admissible.” Michon v. Ayalla, 84 Tex. 685, 19 S.W. 878 (1892). In the instant case, testator left nothing in his will to one of his children. The will was in evidence and absent evidence explaining this unnatural disposition, it could constitute evidence of undue influence. The testator knew about the loans to John and Doris Gayle and “got mad” when he learned of their nonpayment. Admission of the testimony as to these loans by testator’s ex-wife was proper to aid the jury in ascertaining the testator’s mental condition.

Contestants further complain by point of error No. 3 that the trial court should not have excluded the exhibit of a letter from L. D. Campbell to Hollis Massey, which letter, contestants allege, contained material favorable to their issues of lack of “testamentary capacity” and “undue influence”, and that the exclusion was certainly error in view of the fact that it had been qualified and admitted as a business record under Article 3737e, Tex.Rev.Civ.Stat.1925.

Contestants tendered into evidence records of the Houston Agricultural Credit Association pertinent to that organization’s business dealings and loans to testator after properly qualifying the same under Art. 3737e. The records were admitted in bulk and no objections were made at that time. Later in the trial, when contestants sought to read into evidence one letter from the said records, proponents objected on the grounds that it contained “double hearsay”. The court acknowledged that the instrument had previously been admitted into evidence, but withdrew the admission on motion of proponents and sustained the hearsay objections to the evidence. We think such withdrawal was proper under the facts of the case before us.

In the case of Railway Co. v. Lamothe, 76 Tex. 219, 13 S.W. 194 (1890), the Texas Supreme Court set out guidelines for allowing a withdrawal of already admitted evidence. The Court said:

“Objections not made to the introduction of evidence when it is offered, but afterwards, in the form of a motion to exclude it generally, deserve a less favorable consideration than when made at the time. Usually, some reason for the delay in urging the objection ought to be made to appear, and the decision upon such objections ought to be left more to the discretion of the trial courts than when the objections are interposed at the proper time.” (p. 195)

No reason was given for the delay in making objection and it was held that the court’s refusal to withdraw was a proper exercise of discretion.

It is within the discretion of the trial court to allow the withdrawal of evidence already admitted in evidence. McLain v. Sitton, 374 S.W.2d 945, 142 Tex. 36 (Tex.Civ.App.—Beaumont 1964, no writ) and Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407 at 408 (1943). “If the Judge, after receiving and permitting the evidence to go to the jury, had become convinced that it was not legal evidence, there is no impropriety in his correcting his own error, and excluding it from the jury.” Gaines v. Salmon, 16 Tex. 311, at p. 313 (1856).

It would serve no useful purpose to set out the lengthy letter verbatim. Suffice it to say that the witness, L. D. Campbell, who wrote the letter to Hollis Massey, testified by deposition to every favorable inference that contestants argue was contained in such letter. Further, every theory espoused by contestants and supported by the contents of the letter, found support in the testimony of other witnesses called by contestant's and by admitted evidence in other forms. Thus, even if there were error, such was rendered harmless. It cannot be said that the exclusion of this letter was calculated to cause and probably did cause the rendition of an improper judgment and no reversal can be based on this point of error. Tex.R.Civ.P. 434, 503.

The fourth point of error submitted by contestants complains of the trial court’s failure to declare a mistrial following proponents’ attorney’s commenting upon contestants’ failure to call certain witnesses who were disqualified by Article 3716, T.R. C.S.1925, commonly known as the Dead Man’s Statute. We overrule this point.

Since the advent of Rule 182a, T.R.C.P., trial courts have been permitted to instruct the jury on the terms and effects of the Dead Man’s Statute. From the cases cited by contestants in their excellent brief and examined by this court, and especially those under Rules 434 and 503, T.R.C.P., only in cases where the improper argument or comment concerning a disqualified witness’ failure to testify, probably caused an improper verdict to be rendered, have the courts ordered reversals. In Lumbermen’s Lloyds v. Loper, 153 Tex. 404, 269 S.W.2d 367 (1954), our supreme court, after concluding that the argument of counsel for the prevailing party was not proper, and could not ordinarily be cured by instruction from the bench, affirmed the judgment of the trial court and stated that:

“ . . .we think that in argument cases we may properly reason, as we do in this case, that since the evidence so preponderated in favor of the finding that the alleged accident did not occur, and since the worst of the offending argument had no direct reference to that specific matter, the argument probably did not cause the verdict and judgment to be as they were. . . .We believe that any fair jury would have reached the same verdict regardless of the argument

The comment in the case before us was concerned with the failure of the contestants to call Mary Samora, the Dixons, their children or one Leland Campbell to testify as to whether the testator was of unsound mind or unduly influenced. By deposition, Leland Campbell had in fact testified. The Dixons and their children being proponents, and Mary Samora, being a devisee under the subject will, would not have been expected to aid contestants if they had testified.

In view of the trial court’s sustaining contestants’ objections to the comments, instructing the jury under Rule 182a and the evidence of the entire case, we hold that such comments were not harmful to the extent that they caused the rendition of an improper verdict. Windom v. Windom, 422 S.W.2d 611 (Tex.Civ.App.—Houston [1st Dist.] 1967 no writ); Folse v. Monroe, 190 S.W.2d 604 (Tex.Civ.App.—Beaumont 1945, writ ref’d w. o. m.); Fox v. Lewis, 344 S.W.2d 731 (Tex.Civ.App.—Austin 1961, writ ref’d n. r. e.).

The judgment of the trial court is affirmed.


author: WARREN, Justice.

text:
    LODAL & BAIN ENGINEERS, INC., Appellant, v. BAYFIELD PUBLIC UTILITY DISTRICT et al., Appellees.
    No. 17409.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 24, 1979.
    Rehearing Denied June 8, 1979.

      W. W. Fowlkes, San Antonio, for appellant.
    Sears & Burns, C. Charles Dippel, Houston, for appellees.
    Before EVANS, WALLACE and WARREN, JJ.
   WARREN, Justice.

This is an appeal by Lodal & Bain Engineers, Inc., urging that the trial court erred in granting a summary judgment that the appellant was not entitled to either a constitutional, statutory, or equitable lien, and in severing the partial summary judgment from the determination of the validity of the debt.

Bayfield Public Utility District (BPUD) was created by legislative enactment effective June 4,1971. Acts of the 62nd Legislature, 1971, Chapter 641, page 2084. Thereafter, the Quincy Lee Company, an appellee herein, purchased a 296.134 acre tract of land within the boundary lines of BPUD. Prior to the purchase of the property, the appellant entered into a contract with. Quincy Lee to conduct certain feasibility studies pertaining to the development of this tract. After Quincy Lee Company purchased this tract in October of 1971, the appellant continued to provide engineering services and, according to an affidavit, agreed to furnish all necessary services. Thereafter, in November of 1971, the appellant entered into a written contract with BPUD. In November of 1972, Quincy Lee Company sold the land to Royal Crest, Inc. and Texas Central Mortgage Company. In an affidavit, Henry Bain, a principal of appellant, stated, inter alia, that Quincy Lee Company, Royal Crest, Inc., and Texas Central Mortgage Company were joint venturers acting as agents, one for another. In addition, the affidavit recites that all of the work performed was at the request of Quincy Lee or his son Steven Lee, a principal of Royal Crest Inc., and that it was his understanding of their agreement that the appellant could hold the joint venturers responsible, as well as BPUD for the engineering services rendered in connection with the development of the land.

The preliminary point of error which must be addressed is whether the trial court erred in severing the establishment of the debt from the validity and scope of the lien. If the trial court erred, then the entire case must be remanded, and the merits of the other five points of error cannot be addressed at this time because the partial summary judgment would be an interlocutory order from which an appeal cannot be perfected absent an applicable exception.

A severance is appropriate only if a controversy involves two or more distinct causes of action, each of which constitute a complete lawsuit within itself. Tex.R. Civ.P. 41; Hall v. City of Austin, 450 S.W.2d 836 (Tex.1970).

There is a well-establishéd line of cases holding that the right to recover a personal judgment on a debt and the right to foreclose a lien securing that debt are severable and may be made the subject of two distinct causes of action. Carter v. Gray, 125 Tex. 219, at 221, 81 S.W.2d 647 (1935); Jordan v. Massey, 134 S.W. 804 (Tex.Civ.App. 1911, no writ). Thus, a creditor can establish liability and thereafter bring a subsequent suit to foreclose his lien. It is also undisputed that a debtor can bring a bill to remove a cloud on title or a declaratory action to determine whether a lien exists or covers his property on a basis separate and distinct from the validity of the debt. In the instant ease, the trial court did not err in severing these issues.

The next issue which must be addressed is whether the trial court erred in granting a summary judgment that the appellant did not have either a constitutional, statutory or equitable lien on the property of the appellees.

Appellees contend that the appellant did not construct any of the improvements, that the improvements which were constructed were public improvements upon which a lien cannot attach, and that the appellant did not have a contract with the owners of the land such that the land could be subjected to a lien.

We hold that appellant is not entitled to a constitutional or equitable lien.

Article XVI, See. 37 of the Texas Constitution provides:

“Mechanics, artisans, and materialmen of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or material furnished therefor;

Texas authorities have restrictively interpreted the terms “building” and “article”. For the purposes of this section, building has been defined as only those structures having a capacity to contain and which are designed for the habitation of man or animals or the shelter of property. Peterson v. Stolz, 269 S.W. 113 (Tex.Civ.App.—Beaumont 1925, writ ref’d).

In Campbell v. City of Dallas, 120 S.W.2d 1095 (Tex.Civ.App.—Waco 1938, err. ref’d) it was determined that a contractor was not entitled to a constitutional lien because the construction of water and sewer lines was not construction of an article or building within the meaning of this constitutional provision. Campbell was followed in Taylor v. Rigby, 574 S.W.2d 833 (Tex.Civ.App.—Tyler 1978, writ pending). See also Black, Sivalls and Bryson, Inc., v. Operators’ Oil & Gas Co., 37 S.W.2d 313 (Tex.Civ.App.—Eastland 1931, writ dism’d) holding that a contractor was not entitled to a constitutional lien for repairing a road grade); and National Western Life Insurance Co., v. Acreman, 415 S.W.2d 265 (Tex.Civ.App.—Beaumont 1967, modified on other grounds 425 S.W.2d 815 holding that a contractor was not entitled to a constitutional lien for clearing land and constructing a road). We therefore, conclude that the appellant is not entitled to a constitutional lien.

Appellant is not entitled to an equitable Hen because there is no written instrument evidencing an intent to subject the appellees’ land to a lien. See Home Investment Co. v. Fidelity Petroleum Co., 249 S.W. 1109 (Tex.Civ.App.—Dallas 1923, writ ref’d).

Tex.Rev.Civ.Stat.Ann. art. 5452 (Vernon’s Supp.1978-1979) provides in relevant part:

Any person or firm ... or corporation . . who may labor, . or furnish labor or material: (a) for the construction or repair of any house, building or improvement whatever; . shall have a lien on the lot or lots necessarily connected therewith ... to secure payment: (a) for the labor done or material furnished or both for such construction or repair. The word “improvement” as used herein shall be construed so as to include: abutting sidewalks and streets and utilities therein; ... If the abutting sidewalks and streets and utilities therein are public property, such lien shall be applicable to the property of the owner and shall be exclusive of the public property.

The statute defines “labor” as that which is rendered in the direct prosecution of the work. The term “original contract” is defined as an agreement to which an owner is a party.

The provisions of this statute are much more comprehensive than the constitutional provision as interpreted.

The first question is whether the nature of appellant’s work — e. g., the development of plans and specifications — would permit him to assert a statutory lien. Ap-pellees contend that the appellant did not labor in the direct prosecution of the work as required by the statute.

The mechanic’s and materialmen’s lien statutes are to be liberally construed for the purpose of protecting laborers and material-men. Hayek v. Western Steel Co., 478 S.W.2d 786, 795 (Tex.1972). The predominant reason for this liberal construction is to protect mechanics and materialmen because their labor and material lose all further value to them once they have been furnished. At the same time, the labor and material enhance the value of the property for the benefit of the owner. Hayek, supra. The statute and its liberal construction rest on broad grounds of natural equity and the doctrines of estoppel and unjust enrichment.

In Sanquinett & Staats v. Colorado Salt Co., 150 S.W. 490 (Tex.Civ.App.—Fort Worth 1912, writ ref’d) it was determined that an architect was entitled to a statutory lien for developing plans as well as for superintending the construction of the building. Appellees assert that the statute construed in Sanguinett was substantially different than art. 5452. We do not find the change in the language significant. Moreover, the affidavit of Henry Bain states that he has superintended the construction of the work. This statement would satisfy the more restrictive language of Lancaster v. McKenzie, 439 S.W.2d 728 (Tex.Civ.App.—El Paso 1965, no writ) requiring that the architect formulate the plans and superintend the construction.

The last issue which must be addressed is whether the appellant entered into a contract with the appellees such that the appellees’ land could be charged with a statutory lien. The affidavit of Henry Bain raises material issues of fact pertaining to the existence of a contract with Quincy Lee Company, Royal Crest, Inc., and Texas Central Mortgage Company. One possible construction of this affidavit is that the appel-lees, as joint venturers, guaranteed the appellant that it would be paid for all the necessary services rendered regardless of whether these services were rendered for the municipal entity (BPUD), or for the joint venturers. The affidavit is substantiated by the deposition of Henry Bain that all the appellant’s work was performed at the request of Quincy Lee, a principal of Quincy Lee Company and Steven Lee, a principal of Royal Crest, Inc. Moreover, invoices for the services rendered were mailed to the joint venturers as well as to the attorneys for the municipal utility.

A motion for summary judgment must be denied if there is any genuine issue of material fact. Gibbs v. General Motors, 450 S.W.2d 827 (Tex.1970). All conflicts in the evidence must be disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Parrott v. Garcia, 436 S.W.2d 897 (Tex.1969).

We hold that the affidavit of Henry Bain raises material issues of fact as to whether appellant is entitled to a statutory lien. Appellant’s points of error 1 and 4 are sustained.

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


author: PHILLIPS, Chief Justice.

text:
    SOUTHWEST MINERALS, INC., Appellant, v. A. M. McCONNELL et al., Appellee.
    No. 12918.
    Court of Civil Appeals of Texas, Austin.
    May 30, 1979.
    Rehearing Denied July 11, 1979.

      B. J. Walter, Jr., Foreman, Dyess, Prew-ett, Rosenberg & Henderson, Houston, for appellant.
    James L. Cutcher, Barkley & Cutcher, Taylor, for appellee.
   PHILLIPS, Chief Justice.

This is a venue case. Appellees sued appellant for breach of contract. The suit was filed in Caldwell County, Texas. Appellant filed a plea of privilege asserting its right to be sued in Harris County, Texas, the county of its residence. Appellees filed a controverting plea, and after hearing, the district court overruled appellant’s plea of privilege. Appellant then perfected its appeal to this Court.

We reverse and remand.

Appellees are two brothers who are partners in an oil field drilling company, McConnell Drilling Company. The parties hereto entered into negotiations for a contract whereby appellees were to drill oil wells for appellant in Colorado and Mata-gorda Counties. These negotiations occurred in Caldwell County where appellees maintain their residence.

Appellees prepared and forwarded a “Rotary Drilling Bid Proposal and Contract” to appellant in Houston. This instrument provided for payment to appellees to be made in Lockhart, Caldwell County, and also provided that it would not become effective until executed by both parties.

The “Rotary Drilling Bid Proposal and Contract” was never executed by appellant. Rather, appellant mailed appellees a “letter agreement.” Appellees signed this letter agreement and returned it to appellant. This letter agreement had no provision that payment be made in any particular place.

In response to appellees’ suit, appellant filed its plea of privilege and, by sworn denial, denied that it had executed or entered into the bid proposal and contract.

Appellees then filed their controverting plea and answered appellant’s venue contention by alleging that the pleaded venue was proper under Tex.Rev.Civ.Stat.Ann. art. 1995, §§ 5 and 23 (1964 and Supp.1978).

Subdivision 5 of Article 1995 states: “. . . if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

It is appellees’ contention that the two written instruments, the “Rotary Drilling Bid Proposal and Contract” which noted that performance would be performable in Caldwell County, and the letter agreement executed by the parties hereto with no mention of place of performance, when taken together, formed a binding contract between the parties.

We think not. This argument conflicts with the express terms of the “Rotary Drilling Bid Proposal and Contract.” According to the proposal:

“This instrument shall not become a binding contract until Owner [Southwest] has noted its acceptance and Owner shall be under no obligation to Contractor [McConnell] until such acceptance has been noted and a fully executed copy of this agreement sent to Contractor. . . ” (Emphasis added).

Where an offer prescribes the time and manner of acceptance, its terms in this respect must be complied with to create a contract. Town of Lindsay v. Cooke County Electric Cooperative Association, 502 S.W.2d 117 (Tex.1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1974); Texas Employers’ Insurance Association v. Moore, 56 S.W.2d 652 (Tex.Civ.App.1932, writ ref’d).

It was undisputed that the “Rotary Drilling Bid Proposal and Contract” was never executed and returned in accordance with its provisions. Consequently, it did not bind appellant in any respect, much less obligate it to make payment in a particular county.

Appellees rely also on subdivision 23 of Article 1995. It provides in pertinent part that suit against a private corporation may be brought in the county in which the cause of action or part thereof arose. Ap-pellees contend that a part of their cause of action for breach of contract arose in Caldwell County inasmuch as negotiations took place there. To prevail they must have pleaded and proved appellant was a corporation and the existence of a cause of action, which issues are not in dispute, and that the cause of action or any part thereof arose in the county of suit. E. g., Kids Kounty Klothing, Inc. v. Lachman-Rose Co., 546 S.W.2d 381 (Tex.Civ.App.1977, no writ); Delhi Gas Pipeline Corp. v. Allgood, 492 S.W.2d 651 (Tex.Civ.App.1973, no writ). The requirement of subdivision 23 that “part” of the cause of action must have arisen in the county of suit is satisfied by proof that the contract was either made or breached there. Id.

In a venue case, the plaintiff must set out in his controverting plea the specific facts relied on to establish venue in the court where the case is pending. The right to be sued in the county of one’s residence is a valuable right, and the burden is on the plaintiff to plead and prove the facts which will sustain venue under an exception. Leonard v. Maxwell, 365 S.W.2d 340 (Tex.1963); Jefferies v. Dunklin, 131 Tex. 289, 115 S.W.2d 391 (1938). Appellees alleged in their original petition and controverting plea merely that negotiations leading up to execution of the two instruments were conducted in Caldwell County and not that the parties entered into a contract there.

At the venue hearing, appellees sought to introduce testimony by the parties and the “letter agreement,” all of which tended to show, in various ways, that a contract was entered into in Caldwell County. Appellant objected in each instance on the basis that the evidence was not supported by the pleadings. The trial court overruled the objections by appellant, we believe, erroneously. The pleadings determine the issue upon which parties go to trial, and it is not proper to admit evidence unless it is addressed to or bears upon some issue raised by the pleadings. Erisman v. Thompson, 140 Tex. 361, 167 S.W.2d 731 (1943). The evidence appellees sought to introduce was at variance with the allegation in the controverting plea that “negotiations” took place in Caldwell County and the evidence should not have been admitted.

Although appellant did not specially except to the defect in appellees’ controverting plea, as appellant should have done under Tex.R.Civ.P. Rule 90, specific objection to the evidence was made, so the issue was not tried by implied consent. See Buchanan v. Jean, 141 Tex. 401, 172 S.W.2d 688 (1943). The controverting plea must set out the essential venue facts relied upon by the plaintiff “where the question is properly raised by special exceptions or by objections to the evidence.” Wilson’s Pharmacy, Inc. v. Behrens Drug Co., 494 S.W.2d 161 (Tex.1973) (emphasis added); accord, 1 McDonald, Texas Civil Practice § 4.49, at 596 (1965). Appellees failed to show that the cause of action or part thereof arose in Caldwell County as is required by subdivision 23.

The judgment of the trial court is reversed and the cause is remanded to the district court with instructions to enter an order transferring the cause to Harris County, Texas, for a trial on the merits.

Reversed and Remanded with Instructions.

      .“This will confirm our agreement whereby you agree to drill our # 1 Schiurring 3900' well, Colorado County, Texas, and our # 1 Lewis 3900' well, Matagorda County, Texas, under the following terms:
      1. You agree to drill the wells on a footage basis of $6.50 per foot with rig time to commence, with your usual rates, when the first log is out of the hole.
      2. You will drill the Schiurring well first, to be commenced in about two weeks, then moving immediately on to the Lewis well.
      3. You agree to purchase twenty percent (20%) interest in the 324.42 Schiurring lease for $15,000.00, which sum takes you through the first log at which time you will be pro rata. If the well is productive, we will assign to you your twenty percent (20%) interest in the iease under the same terms and conditions as the assignments to our other partners.
      Very truly yours,
      SOUTHWEST MINERALS, INC.
      /s/
      James C. Calaway
      President”
      AGREED TO AND ACCEPTED
      This 24 day of Feb, 1976
      /s Afton M. McConnell


text:
    Ex parte William Randall JOHNSON, Relator.
    No. 6093.
    Court of Civil Appeals of Texas, Waco.
    May 31, 1979.
    Rehearing Denied June 28, 1979.
    David W. Anderson, Hand & Anderson, Marlin, for relator.
    Thomas P. Moore, Jr., Waco, for respondent.
   HALL, Justice.

This is an original proceeding in this court by relator William Randall Johnson for writ of habeas corpus to gain relief from an order of the 74th Judicial District Court of McLennan County committing him to jail for 30 days for contempt of court for failing to comply with part of the property division order of that court in the judgment divorcing relator and his former wife Elizabeth Johnson. We have permitted relator to remain out of jail on bail pending our determination of his application.

Relator and Mrs. Johnson were divorced by judgment of the 74th Judicial District Court in July, 1976. At that time relator was receiving service-connected veterans’ disability compensation benefits of $722.00 per month from the Veterans’ Administration under the provisions of 38 U.S.C. §§ 101 et seq., and civil service retirement benefits of $300.00 per month. As a part of the court’s settlement of the parties’ properties, relator was ordered in the divorce judgment to deposit one-half of each of those benefits monthly as they were received by him into the registry of the court for Mrs. Johnson. The judgment of divorce was not appealed and is final. Relator complied with the order through November, 1978. However, relator did not pay Mrs. Johnson any part of the veterans’ compensation benefits he received in December, 1978. He told her then he would no longer pay any of those benefits tp her, and that “he would stop his check to keep me from getting it.” The questioned contempt decree was founded on that violation.

Relator had been an active member of the United States Navy for four years when he and Mrs. Johnson married in April, 1951. He was given a medical discharge in July, 1959. Relator was suffering lateral sclerosis and arthritis of the spine which were service-connected and 100% disabling at the time of his discharge, and he was entitled to and began receiving disability retirement pay. (See, 10 U.S.C. § 1201). In March, 1970, relator executed a waiver of his retired pay in order to receive the disability compensation benefits in question from the Veterans’ Administration. When relator effected that waiver he was receiving $142.28 per month gross retirement pay from the Navy. The waiver and exchange of the benefits is provided for in 38 U.S.C. § 3105, but under the terms of § 3104(a), relator may not receive both. The evidence establishes without dispute that relator chose to receive Veterans’ Administration compensation benefits in lieu of Navy disability retirement benefits; that the compensation he presently receives is not based upon the length of his military service, but is based solely upon his disability; that relator is not presently entitled to longevity retirement; that his disability was service-connected; that he is presently 100% disabled; that his disability rating is subject to periodic review; and that to the extent he may improve in the future his disability benefits could be reduced. The Veterans’ Administration officer who handles relator’s claim testified, “If [relator’s] condition improves, his disability compensation from the VA could be changed in accordance with his condition. And it would also be true if his condition improves enough, then he would be completely cut off from that compensation.”

Veterans’ basic entitlement to disability compensation from the Veterans’ Administration for service-connected disabilities resulting from personal injury or disease in either wartime or peacetime is set forth in 38 U.S.C. § 310 and § 331. As used in those statutes the term “compensation” is defined in § 101(13) to mean “a monthly payment made by the Administrator to a veteran because of service-connected disability.” The basic rates of compensation depend upon the percentage of disability and whether it was incurred during wartime or peacetime. §§ 314, 334.

Provision is also made in connection with both wartime and peacetime disability compensation for additional compensation to the veteran for a dependent wife, children, and parents. §§ 315, 335. However, under the terms of § 3012(b)(2), the compensation shall be reduced “by reason of divorce, or death of a dependent of a payee.” Our record shows that relator’s compensation was changed after he divorced Mrs. Johnson for the reason, “Dependent Removed.”

Excepting certain questions related to veterans’ insurance and to home, farm and business loans, it is provided in § 211 that, “[T]he decisions of the Administrator on any question of law or fact under any law administered by the Veterans’ Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.”

Among other grounds for relief, relator contends the part of the divorce judgment ordering him to pay part of the disability benefits to his former wife is void for two reasons: first, he asserts that under the terms of the statutes cited above the benefits in question are gratuity to him from the federal government which may be withdrawn by Congress at any time and therefore he did not have a “property” interest in the benefits subject to division upon the granting of the divorce; and second, he asserts that, in any event, under the Supremacy Clause of the Federal Constitution and the nonassignability provisions contained in 38 U.S.C. § 3101(a) application of our State marital property laws to the benefits had been expressly preempted by. Congress.

relator’s property interest

V.T.C.A., Family Code § 5.01 provides the separate property of a spouse consists of: “. . . (2) the property acquired by the spouse during marriage by gift, devise, or descent; and (3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.”

Our-record shows without dispute that relator’s eligibility for the benefits in question ripened while he was in military service during his marriage to Mrs. Johnson, and that he has in fact chosen to accept the benefits in lieu of disability retirement pay which our Supreme Court has held is community property of the spouses divisible upon divorce. Busby v. Busby, (Tex.1970) 457 S.W.2d 551, 554.

Whether the benefits be classed as a gift to relator from the federal government, or whether they be classed as “a payment personal to him from the government for service-connected injury or disease sustained in military service and is not the result of an earned property right” as the court did in Ramsey v. Ramsey, 474 S.W.2d 939, 941 (Tex.Civ.App.—Eastland 1972, writ dism.), they were relator’s separate property at the time of divorce within the marital property law of this State as set forth in § 5.01 of the Family Code, supra. They were income to his personal estate at the time of divorce, and he continues receiving them.

It is the duty of a court rendering a judgment of divorce to “order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” V.T.C.A., Family Code § 3.63. Under the authority of that statute, the court may award all or any part of either spouse’s separate personal property to the other when necessary to effect an equitable division of their properties. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21, 22 (1923); Muns v. Muns, 567 S.W.2d 563, 564 (Tex.Civ.App.—Dallas 1978, no writ). Presumably, when relator and Mrs. Johnson were. divorced, the court determined that an equitable division of their properties required relator to pay one-half of his disability benefits to her. As we have said, the divorce decree is final, and relator may not now attack that determination in this collateral proceeding. Bray v. Bray, 576 S.W.2d 664, 665 (Tex.Civ.App.—Beaumont 1978, no writ).

federal preemption
U.S.Const., Art. VI, provides in part: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

In pertinent part, 38 U.S.C. § 3101(a) contains a nonassignability provision relating to the benefits in question which reads as follows:

“Payments of benefits due or to become due under any law administered by the Veterans’ Administration shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”

We view that statute as designed by Congress to place the benefits beyond the reach and anticipation of creditors by assignment and from seizure under process issued for the collection of debts. Substantially similar congressional and legislative enactments may be found in 10 U.S.C. § 1440 (military annuities); Vernon’s Ann. Civ.St., Art. 6228a, § 9 (state and county pensions); Vernon’s Ann.Civ.St., Art. 6243e.2, § 12 (firemen’s relief and retirement fund); Vernon’s Ann.Civ.St., Art. 6243j, § 20 (policemen’s pensions). The statute was not intended to remove the benefits from the application of the marital property laws of the several States, including the community property laws of our State.

Relator argues our construction of § 3101(a) is no longer tenable in the light of the ruling of the United States Supreme Court in the recent case of Hisquierdo v. Hisquierdo, — U.S. —, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979).

In Hisquierdo, the Court held that retirement benefits under the Railroad Retirement Act of 1974, 45 U.S.C. §§ 231 et seq., are not subject to division by a State court as “property” upon divorce. It held that under the Supremacy Clause of the Federal Constitution, the community property law of the State of California was preempted by the express terms of the Act, especially by the anti-attachment and nonassignability provisions set forth in § 231m which reads as follows:

“Notwithstanding any other law of the United States, or of any State or territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated.”

The language in § 231m is a much stronger expression of Congressional intent for preemption than that contained in 3101(a). It expressly calls for adherence to its terms “notwithstanding any other law of any State” or any other federal law; whereas § 3101(a) permits assignment “to the extent specifically authorized by law.”

The Hisquierdo decision was based upon several provisions in the Railroad Retirement Act, but the Court placed great emphasis on the terms of § 231m. The Court noticed its prior ruling that, “State family and family-property law must do ‘major damage’ to ‘clear and substantial’ federal interests before the Supremacy Clause will demand that state law be overridden” and stated that “[t]he federal nature of the benefits does not by itself proscribe the entire field of state control.” But it said that § 231m “plays a most important role in the statutory scheme” relating to the railroad retirement benefits, and “preempts all state law that stands in its way.” It said, “Congress has made a choice, and § 231m protects it. It is for Congress to decide how these finite funds are to be allocated. The statutory balance is delicate. Congress has fixed an amount thought appropriate to support an employee’s old age and to encourage the employee to retire. Any automatic diminution of that amount frustrates the congressional objective. By reducing benefits received, it discourages the divorced employee from retiring.”

We do not believe the decision in His-quierdo is controlling in our case.

Relator’s remaining contentions are also without merit and are overruled.

Relief is denied. Relator is remanded to the custody of the Sheriff of McLennan County.


author: PEDEN, Justice.

text:
    Rita WILDER, Appellant, v. Christopher MOSSLER et al., Appellees.
    No. 17417.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 31, 1979.
    Rehearing Denied July 5, 1979.

      Lackshin & Nathan, Bernus Wm. Fisch-man, Houston, for appellant.
    John H. Holloway, Liddell, Sapp, Zivley & Brown, Willis Witt, Kenneth H. Knop, Houston, for appellees.
   PEDEN, Justice.

Rita Wilder appeals from a probate court order authorizing the temporary administrator, Texas Commerce Bank, to compromise and settle certain tort cases filed by Christopher Mossier and pending in a district court against the estate of Candace Mossier, deceased. The appellant contends that the probate court was without jurisdiction to entertain an application to settle and compromise the pending litigation and that the court erred in refusing to accord her a trial by jury on the contested issues. We affirm.

The appellant does not complain by point of error of any finding of fact made by the trial court. She did not object to any of them, request additional findings, or assign points of error to them.

In 1978, Christopher Mossier and Daniel Mossier jointly filed two suits against their adoptive mother, Candace Mossier, in district court. In the first suit, they alleged that Mrs. Mossier had acted wrongfully as executrix of the estate of Jacques Mossier and as trustee of certain trusts created under his will (the executrix-trustee suit); in the second, they alleged she acted wrongfully in conducting the affairs of Nationwide Securities Company, a corporation in which she owned the controlling interest and Daniel and Christopher Mossier were minority stockholders (the Nationwide suit). Mrs. Mossier died in 1976, while these cases were still pending, and the temporary administration of her estate was opened in November, 1976. The temporary administrator was later made a defendant in these cases.

In August of 1978, the temporary administrator filed an application for authority to settle and compromise the suits pending against the estate by Daniel Mossier and Christopher Mossier. In October of that year, the temporary administrator filed an application for instructions because Rita Wilder and other heirs had entered into a proposed settlement agreement as to the claims of Daniel Mossier, including his contest of a purported codicil. Upon receiving instructions from the court, the temporary administrator submitted an application to settle all of Daniel Mossler’s claims and a separate application for authority to settle Christopher Mossler’s tort claims.

The applications to consider both Daniel Mossler’s and Christopher Mossler’s proposed settlements were considered at the same hearing in November of 1978 and resulted in the court’s authorizing the temporary administrator to proceed with both of them. The appellant did not assert that the probate court lacked jurisdiction to authorize settlement of the tort cases pending in the district court. In fact, she urged the court to approve the settlement as to Daniel Mossier.

We summarize the findings of fact made after the hearing on the applications. In July, 1978, Rita Wilder had filed a demand for jury trial concerning the claims of Christopher Mossier, but not with regard to the temporary administrator’s application to settle Christopher Mossler’s interest in the Nationwide and executrix-trustee suits. Her demand for a jury trial might be construed as including an opposition to the claims filed by Christopher Mossier, but she did not file a written opposition to the temporary administrator’s application for authority to settle and compromise his interest in the Nationwide and executrix-trustee suits.

Unless settled, the costs of preparing and trying the two suits of Christopher Mossier could amount to as much as the settlement proposed by the temporary administrator’s application. If the Nationwide suit were tried, a jury or court could reasonably conclude that Candace Mossier diverted the business of Nationwide to another entity which she controlled but in which Christopher Mossier and Daniel Mossier had no interest. Further, a jury or court could reasonably make findings upon which a judgment could be entered awarding Christopher Mossier at least $54,000 plus interest from 1973 or approximately $10,000 a year plus interest from 1971.

If the executrix-trustee suit were tried, a jury or court could reasonably find that Candace Mossier, as executrix of the Jacques Mossier Estate, sold assets of that estate (including a residence) to relatives and then acquired them from those relatives at a time when Christopher Mossier was a minor. Further, a jury or court could reasonably find that Candace Mossier paid fees to her own attorneys from trust funds belonging to Christopher Mossier. She received about $750,000 in commissions and fees as executrix. The temporary administrator was justified in believing that there was a reasonable probability that a jury would make some or all of the determinations set forth in the findings concerning evaluation of these suits.

The claims of Christopher Mossier filed in this proceeding were rejected by the temporary administrator and were not approved by the probate court. The settlement of the Christopher Mossier litigation is in the best interest of the estate.

The probate judge made these conclusions of law:

“1. Upon written application to and order by the Court, the temporary administrator of an estate may compromise litigation against the estate.
2. The settlement of the Christopher Mossier litigation proposed by the Temporary Administrator’s Application is in the best interests of the Estate.
3. By reason of the many independent issues and applications which may be presented during the probate of a complex estate such as this, a demand and fee for jury trial is required with regard to each application or issue so triable.
4. Under the Probate Code of Texas, the Local Rules of the Probate Courts of Harris County, Texas, and the facts, trial by jury was not required concerning the Temporary Administrator’s Subject Application.
5. The Probate Court had authority to perform the discretionary function of approving compromises or settlements of litigation pending against the Estate.”

Mrs. Wilder’s first point of error is that the probate court was without jurisdiction to entertain an application to settle and compromise litigation pending against a decedent’s estate where the claim had been rejected by the temporary administrator and the claimant had thereafter failed to timely institute action in the probate court as prescribed by § 313 of the Texas Probate Code. That section provides in part: “When a claim or a part thereof has been rejected by the representative, the claimant shall institute suit thereon in the court of original probate jurisdiction in which the estate is pending or in any other court of proper jurisdiction within ninety days after such rejection, or the claim shall be barred.

We hold that Christopher Mossler’s tort actions dealt with unliquidated potential liability of the kind that require fact-findings to ascertain their amount; they did not constitute a “claim for money” of the kind that must be presented to the executor or administrator for approval as provided by § 298 of the Code. See Allen v. Denk, 87 S.W.2d 303, 306 (Tex.Civ.App.1935, no writ); 18 Tex.Jur.2d 342, Decedent’s Estates § 401.

In any event, we have noted that Christopher Mossier had filed two suits in district court against his mother seeking total damages of $2,700,000. A claim based on those suits was rejected by the temporary administrator on May 27, 1977, and by amended petition filed August 23, 1977, the temporary administrator was joined as a party defendant. Section 5(a) of the Probate Code places original control and jurisdiction over executors, administrators, guardians and wards with the district court. We hold that by joining the temporary administrator as a party defendant in the district court suits within the ninety-day period following rejection of the claim against the estate, Christopher Mossler’s action was sufficient to preserve his claim, if necessary that he do so.

Mrs. Wilder also contends that once Christopher Mossier elected to proceed in the district court rather than in the probate court, that election was binding, and the probate court lacked authority to permit compromise of the suits in district court. We do not agree.

The temporary administrator’s authority to compromise pending litigation is derived from § 234(a)(4) of the Probate Code, which provides:

(a) Powers to be Exercised Under Order of the Court. The personal representative of the estate of any person may, upon application and order authorizing same, renew or extend any obligation owing by or to such estate. When a personal representative deems it for the interest of the estate, he may, upon written application to the court, and by order granting authority:
(1) ■ • •
(2) . . .
(3) . . .
(4) Make compromises or settlements in relation to property or claims in dispute or litigation;
(5) . . .

Section 234 does not limit the claims which a temporary administrator may compromise to those pending in probate court. Section 313 of the Code permits suits on rejected claims to be filed thereon “in the court of original jurisdiction in which the estate is pending or in any other court of proper jurisdiction.” “Executors, administrators and guardians are authorized by statute to compromise claims in dispute or litigation when the matters in controversy and the settlement agreement are properly-presented to and approved by the probate court.” Moore v. McInnis, 295 S.W.2d 707, 712 (Tex.Civ.App.1956, writ ref. n. r. e.). See also Tucker v. Cole, 215 S.W.2d 252, 257 (Tex.Civ.App.1948, writ ref. n. r. e.).

Mrs. Wilder’s second point of error is that the trial court erred in refusing to accord her a trial by jury on the contested issues of fact asserted by Christopher Mossier as required by Section 21 of the Probate Code and by Article V, Sections 10,16, and 29 of the Texas Constitution.

The appellant calls attention to § 312(a) and § 21 of the code:

§ 312 (a) Any person interested in an estate or ward may, at any time before the court has acted upon a claim, appear and object in writing to the approval of the same, or any part thereof, and in such case . . . the court shall hear proof and render judgment as in ordinary suits. (emphasis supplied)
(b) • • •
§ 21. In all contested probate and mental illness proceedings in the district court or in the county court or statutory probate court, county court at law or other statutory court exercising probate jurisdiction, the parties shall be entitled to trial by jury as in other civil actions.

The appellant does not contend that the proposed settlement should have been submitted to a jury; she argues that since she timely filed in probate court demands for jury trials, that court was obliged by § 21 to afford jury trials to her. It is her position that there is a conflict between the provisions of sections 21 and 234.

We do not agree and do not believe § 21 is applicable in our case. Although the probate judge permitted Mrs. Wilder’s counsel to participate fully in the hearing on the application for authority to settle Christopher Mossler’s suits, we do not consider that he was required to do so.

Section 10 of the Code provides: “Any person interested in an estate may, at any time before any issue in any proceeding is decided upon by the court, file opposition thereto in writing and shall be entitled to process for witnesses and evidence, and to be heard upon such opposition, as in other suits.” It has been determined that Mrs. Wilder did not file opposition to the settlement in writing; we have noted that she did not object to the trial court’s findings of fact, request additional findings, or assign points of error to them. The trial judge’s eighth finding of fact was, in essence, that while Rita Wilder’s jury demand concerning the Christopher Mossier claims might be construed as including an opposition to his claims, she did not file a written opposition to the temporary administrator’s application for authority to settle them.

Further, Mrs. Wilder does not appear to have been a necessary or proper party to the two tort actions, and under § 21, it is, of course, the parties who are entitled to trial by jury as in other civil actions. “The general rule is that the heirs of a decedent, are neither necessary nor proper parties defendant to a suit brought against the administratrix to establish a claim against the decedent’s estate.” Garza v. Wilkinson, 129 S.W.2d 839 (Tex.Civ.App.1939, writ dism. judg. corr.); 18 Tex.Jur.2d 506, Decedents’ Estates § 648. “A suit seeking to establish the decedent’s liability on a claim and subject property of the estate to its payment should ordinarily be instituted against the personal representative or, under appropriate circumstances, against the heirs or beneficiaries.” Price v. Estate of Anderson, 522 S.W.2d 690 (Tex.1975). There are none of the circumstances shown in our case that would take it out of the general rule, such as where no administration is required or where the personal representative is shown to have an interest adverse to the heirs. We conclude that Mrs. Wilder was not a proper party under § 21.

Further, the settlement of litigation by a personal representative is not a proceeding triable by jury “as in other civil actions.” The clear legislative directive in § 234 would be forestalled if any heir of the decedent could require a jury trial before the temporary administrator could exercise the powers listed in that section.

Under the record in our case, the judge of the probate court was justified in authorizing the temporary administrator to settle Christopher Mossler’s two tort cases.

Affirmed.

COLEMAN, C. J., and DOYLE, J., also sitting.


author: RALEIGH BROWN, Justice.

text:
    Rhonda Ray STEVENS, Appellant, v. Octavia NOVAK, Appellee.
    No. 5316.
    Court of Civil Appeals of Texas, Eastland.
    May 31, 1979.
    Rehearing Denied June 26, 1979.
    George T. Thomas, Big Spring, for appellant.
    Gerald B. Shifrin and Dudley R. Mann, El Paso, for appellee.
   RALEIGH BROWN, Justice.

This is a consolidated appeal from the granting and denying of summary judgments regarding applications for the probating of two wills of Jessie Marie Tate.

On October 22, 1968, P. Y. Tate and Jessie Marie Tate, husband and wife, made a joint will. On the death of P. Y. Tate, Jessie Marie Tate probated that will as his last will and testament. After Jessie Marie Tate died, Rhonda Ray Stevens, a granddaughter, made application for probate of the 1968 will as the will of Jessie Marie Tate, under which she asserted rights as an executrix and sole beneficiary. Octavia Novak, Jessie Tate’s sister, made application for probate of a will executed by Jessie Marie Tate, dated March 25, 1976, under which she asserted rights as an executrix and primary beneficiary. Each applicant contested the other’s application and Rhonda Stevens in her contest of the 1976 will sought to impose a constructive trust upon the properties of the estate of Jessie Marie Tate contending the 1968 will was a joint, mutual and contractual one.

The contested applications for probate of the two wills were transferred to the District Court of Howard County in compliance with Section 5, Texas Probate Code. The court consolidated the contests for trial purposes only. Two judgments were entered (1) as to the 1968 will, Stevens’ motion for summary judgment as proponent of the will was denied and Novak’s motion as contestant of the probate of the will was granted with the court also denying a constructive trust in favor of Stevens; and (2) as to the 1976 will, Novak’s motion for summary judgment as proponent of the will was granted and Stevens’ claim for the imposition of a constructive trust upon the estate properties was denied together with a denial of her motion for summary judgment as contestant of the probate of the 1976 will. Stevens appeals both judgments. The appeals were consolidated. We reform and affirm each judgment.

The thrust of Stevens’ appeal in the 1976 will contest is the trial court’s denial of her right to impress a constructive trust upon the properties of the estate of Jessie Marie Tate. She argues that in the cause in which she seeks to probate the 1968 will there was no pleading to support any consideration of the constructive trust issue by the court. Stevens does not urge on appeal that the court erred in granting summary judgment for probate of the 1976 will but only that the court erred in holding that no fact issue existed in connection with her right to impose a constructive trust upon the properties of the estate of Jessie Marie Tate.

The court in Huston v. Cole, 139 Tex. 150, 162 S.W.2d 404 (1942, opinion adopted) said:

With respect to an application to probate a will, the court has only to determine whether the instrument tendered is the last will of the deceased; that is, whether it had been revoked, whether it was executed in the manner and under the conditions required by law, and whether the maker had testamentary capacity and was not under undue influence (if raised) when it was executed. In doing this it has no jurisdiction to construe the will or to pass judgment on alleged prior contracts to make devises of property. Its authority is limited to the determination of the issue as to whether the instrument in question is the last will of the deceased, and such it must do without regard to the right of the deceased to devise and bequeath the property she undertakes thereby to dispose of. Masterson v. Harris, 107 Tex. 73, 174 S.W. 570; Ellsworth v. Aldrich et al., Tex.Civ.App., 295 S.W. 206, error refused; Burton et al. v. Connecticut General Life Ins. Co. et al., Tex.Civ.App., 72 S.W.2d 318, Combs v. Howard, Tex.Civ.App., 131 S.W.2d 206; 28 R.C.L., p. 377, sec. 379; 38 Texas Digest, Wills § 215.

In the case at bar, there is no question as to the competency, execution, witnessing and proof of the 1976 will. There was no question but that the 1976 will provided for revocation of the 1968 will. The court had no alternative but to admit the 1976 will to probate rather than the 1968 will. Nesbett v. Nesbett, 428 S.W.2d 663 (Tex.1968).

The admission to probate of the 1976 will or the denial of the second probate of the 1968 will does not defeat Stevens’ rights under the 1968 will if she proves the 1968 will was mutual and contractual. Tips v. Yancey, 431 S.W.2d 763 (Tex.1968). As the court in Yancey said:

Although a survivor may technically revoke his joint and mutual will, the beneficiary under such will has a cause of action, and as this court held in Weidner v. Crowther, 157 Tex. 240, 301 S.W.2d 621 (1957), may come into court and enforce his rights. Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588 (1954); Young, The Doctrinal Relationships of Concerted Wills and Contracts, 29 Tex.L.Rev. 439 (1951).

The court in Jones v. Chamberlain, 563 S.W.2d 885 (Tex.Civ.App.—Texarkana 1978, no writ) said:

When a will is offered for probate, the court’s jurisdiction with respect to the application is limited to a determination of whether or not the will should be admitted to probate as the last will of the decedent. Huston v. Cole, 139 Tex. 150, 162 S.W.2d 404 (1942). The determination of whether or not a will is mutual and contractual is not a matter incident to an estate as that term is used in Section 5, Tex.Probate Code Ann. It is a suit on contract.

The court, being without jurisdiction to determine the constructive trust issue in these probate proceedings, erred in including in its judgments a denial of Stevens’ right to impose a constructive trust. But even assuming the court had jurisdiction to enter such an order, Novak failed in her summary judgment burden of establishing as a matter of law Stevens was not entitled to a constructive trust upon the estate properties in the contest of the 1976 will. Citizens First National Bank of Tyler v. Cinco Exploration Company, 540 S.W.2d 292 (Tex.1976); Wilcox v. St. Mary’s University of San Antonio, Inc., 531 S.W.2d 589 (Tex.1975). In the contest of the 1968 will, there were no pleadings seeking to impose a trust in favor of Stevens and, therefore, the court erred in denying same. Oil Field Haulers Association v. Railroad Commission, 381 S.W.2d 183 (Tex.1964); City of Fort Worth v. Gause, 129 Tex. 25, 101 S.W.2d 221 (1937, opinion adopted).

Our disposition of these cases is without prejudice to the rights of Stevens to file suit in a court of competent jurisdiction to determine her right, if any, under the alleged joint, mutual and contractual will of 1968 of P. Y. and Jessie Marie Tate.

That portion of each judgment which denies Rhonda Ray Stevens her cause of action seeking to impress a constructive trust upon the properties of the Estate of Jessie Marie Tate is eliminated from each judgment. Each judgment as reformed is affirmed.