author: ROBERTSON, Justice.

text:
    F. H. VAHLSING, Jr. and Vahlsing Contracting Corporation, Appellants, v. COLLIER COBB & ASSOCIATES OF DALLAS, INC., Appellee.
    No. 19331.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 1, 1977.
    Rehearing Denied Dec. 15, 1977.
    Ted R. Cackowski, Austin, for appellants.
    Herbert W. Marshall, Shearin, Collins & Marshall, Dallas, for appellee.
   ROBERTSON, Justice.

Collier Cobb & Associates of Dallas, Inc., sued F.H. Vahlsing, Jr. & Vahlsing Contracting Corporation on an indemnity agreement, alleging defendant’s obligations under the agreement had been assigned to plaintiff Cobb by Commercial Union Insurance Company. The trial court rendered summary judgment against Vahlsing and his corporation, and both appealed. We reverse and remand the case for trial.

The sole question on this appeal is whether Cobb’s failure to produce its alleged assignment from Commercial Union Insurance Company precluded the rendition of summary judgment. Cobb maintains that production of the assignment was unnecessary because Vahlsing did not dispute the assignment by filing a sworn pleading under rule 93(i) of the Texas Rules of Civil Procedure. We disagree. Absence of a sworn denial under rule 93(i) only effects waiver of challenge to the genuineness of an assignment which has otherwise been produced; it does not dispense with proof of the existence of the transfer.

Rule 93 requires certain matters in pleadings to be verified by affidavit. Subdivision (i), the rule requires verification of As we read this language, the rule contemplates waiver of disputes regarding the “genuineness” of an assignment which has otherwise been produced. Thus, in the absence of a sworn plea, issues such as execution, authority of the assignor, and genuineness of signatures' are waived; however, these issues are dependent upon proof that an assignment actually exists, and if the existence of the assignment is omitted from the movant’s summary judgment proof, lack of proof of this material fact precludes rendition of summary judgment. Cf. Raulston v. Raulston, 531 S.W.2d 683, 687 (Tex.Civ.App.-Texarkana 1975, no writ) (Rule 93 waiver only dispenses with proof of execution of affidavit, and not its contents). American Fiber Glass, Inc. v. General Electric Credit Corporation, 529 S.W.2d 298 (Tex.Civ.App.-Fort Worth 1975, writ ref’d n. r. e.) (Failure to file sworn plea waives challenge to execution of note, and only remaining requirement is to introduce note into evidence to pr ve its terms); VanHuss v. Buchanan, 508 S.W.2d 412, 414 (Tex.Civ.App.-Fort Worth 1974, writ dism’d) (Execution challenge waived by failure to file sworn denial; introduction of instrument only remaining requirement).

A denial of the genuineness of the in-dorsement or assignment of a written instrument upon which suit is brought by an indorsee or assignee and in the absence of such a sworn plea, the indorsement or assignment thereof shall be held as fully proved . . . [Emphasis added]

Appellee Cobb cites American Hydrocarbon Corp. v. Hickman, 393 S.W.2d 197, 200 (Tex.Civ.App.-Texarkana 1965, no writ) and Blankenship v. Citizens State Bank, 457 S.W.2d 120 (Tex.Civ.App.-Eastland 1970, writ ref’d n. r. e.) to support the argument that attachment of the assignment was unnecessary. The Blankenship case expressly recites that a copy of the assignment was attached to the plaintiff’s petition. Moreover, although the American Hydrocarbon case holds that “proof of an assignment” is unnecessary in the absence of a sworn denial, we are not convinced that the waiver of “proof of an assignment” means waiver of proof of the existence, as distinguished from the genuineness of an assignment. The American Hydrocarbon case does not recite whether the assignment was produced in that case, and it is consistent with our interpretation of Rule 93(i) if we assume that the broad language of that case was appropriate because the assignment was indeed present.

Cobb’s final argument is that attachment of the assignment was unnecessary because its terms had been admitted by Yahlsing’s failure to answer Cobb’s requests for admission. We cannot agree. Even though the terms of the assigned contract may have been admitted by failure to answer the requests, there is no summary judgment proof, either by admission, deemed admission, or otherwise that the assignment actually occurred. We emphasize that the crucial inquiry in a case such as this is whether the assignment actually occurred; even though the terms of the assigned instrument are admitted, summary judgment is improper unless the assignee proves the transaction by which he gained the right to sue. If such an assignment was made, it should be a simple matter to secure it, a sworn copy, or, if the assignment was oral, an affidavit, and attach it as summary judgment proof.

Reversed and remanded.

ON MOTION FOR REHEARING

On rehearing, Cobb argues that summary-judgment proof of an assignment was unnecessary because, as an insurance broker, Cobb could sue in its own name as assignee. In support of this connection, Cobb cites Holmes v. Thomason, 25 Tex.Civ.App. 389, 61 S.W. 504 (1901, no writ), which holds that an insurance broker can sue in its own name when it procures the policy for the insured and pays the premium. We cannot accept this argument. Even assuming the viability of the Holmes rationale, there is no summary-judgment proof that Cobb has paid the premium in this case.

Motion for rehearing overruled.

      . Those requests for admission detailed the terms of the instrument which was allegedly assigned, and those terms were admitted when the trial court struck Vahlsing’s answers to the requests before rendering summary judgment. See Tex.R.Civ.Proc., Rule 169.


source: Caselaw Access Project

author: PEDEN, Justice.

license: Public Domain

text:
    UNITED STATES of America, Appellant, v. FEDERAL DEPOSIT INSURANCE CORPORATION et al., Appellees.
    No. 16940.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 3, 1977.
    Rehearing Denied Dec. 1, 1977.
    Edward B. McDonough, Jr., U. S. Atty., R. Burton Ballanfant, Asst. U. S. Atty., Houston, Barbara Allen Babcock, William Kanter, Richard A. Olderman, Asst. Attys. Gen., Washington, D. C., for appellant.
    Strasburger, Price, Kelton, Martin & Unis, Frank L. Skillern, Jr., Dallas, Fulbright & Jaworski, James C. Slaughter, Houston, for appellee Federal Deposit Ins. Corp., receiver of Franklin Bank.

      Hofheinz & Harpold, Lew W. Harpold, Houston, for appellee creditors of the receivership and liquidation of Franklin Bank.
    Kamp, Pope & Shoemake, Houston, for appellee Kenneth Evans, Independent Executor of Estate of Arthur R. Evans, Creditor of Franklin Bank, Houston, Tex.
   PEDEN, Justice.

The Bureau of Indian Affairs (BIA), an agency of the United States Department of the Interior, sought a court order directing the Federal Deposit Insurance Corporation (FDIC), acting as receiver for a state bank, Franklin Bank, Houston, to pay an amount still owing on deposits, including unpaid interest, and interest on that total from the date of the bank’s closing. The BIA asserted that under 31 U.S.C. § 191 its claim was entitled to priority over common creditors as a debt owed to the United States. The creditors of the receivership and liquidation of Franklin Bank whose common claims have been allowed contend through an attorney ad litem that such statute, as applied to insolvent, insured banks, has been impliedly repealed. They rely on a 1974 amendment to 12 U.S.C. § 1821, a part of the FDIC Act, that included a specific provision for the insurance of public funds up to $100,000, and on the passage of the additional collateral security provisions of 25 U.S.C. § 162a and of 31 C.F.R. § 202.6. The parties filed a stipulation as to the material facts. The trial court granted the creditor’s motion for summary judgment denying the BIA’s claim on the bank’s assets as either a priority or common claim but ruling that the FDIC is entitled to a common claim for its payments on the BIA’s insured deposits. BIA also moved for summary judgment in the trial court. We reverse and render as to principal and interest to the date of bankruptcy.

The BIA had $7,900,508.00 in certificates of deposit with the Franklin Bank when it closed. These deposits were collateralized with Government National Mortgage Certificates in the face amount of $5,217,-790.37. They were sold by the BIA for $4,510,509.99, and the BIA received $2,930,-871.50 in deposit insurance payments from the FDIC. The BIA submitted a claim for the $461,367.00 balance due on CD’s plus $80,734.22 interest on them to the date of closing and a second claim for $98,533.71 plus $114.87 per day until paid for post-closing interest. The FDIC, as receiver, denied priority status to both claims but asked for appointment of an attorney ad litem for creditors of the bank since it would have a conflict of interest in deciding the claims in that it is subrogated to the BIA’s rights and would be entitled to priority claimant’s status as to the $2,930,871.50 paid to the BIA if the BIA was found to be a priority creditor. 12 U.S.C. § 1821(g); V.A.T.S., Art. 489(b) § 4. The BIA urges only its first claim on appeal.

The first point raised by the government is that the court erred in failing to grant priority status to the claim of the BIA as required by 31 U.S.C. § 191 (1970):

“Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, . . . as to cases in which an act of bankruptcy is committed.”

Appellees argue that this statute has been impliedly repealed because it is in conflict with the purpose of the 1974 amendment to the Federal Deposit Insurance Act, 12 U.S.C. § 1821(a)(2)(A), which is to encourage investment in financial institutions to assist in stabilizing the economy. This amendment allows public funds to be insured up to $100,000 per account. Further, BIA deposits are now protected by additional collateral in federal government securities equal in face value to the uninsured portion of the deposits. 31 C.F.R. § 202.6 (1975). Appellees also contend that by requiring security for its deposits in state banks the federal government has waived its rights under the general priority statute.

Appellees point to a case in which priority was denied to federal deposits in a national bank. Cook County National Bank v. United States, 107 U.S. 445, 2 S.Ct. 561, 27 L.Ed. 537 (1883). The U.S. Supreme Court noted that under the National Banking Act, national banks are required to deposit with the U.S. Treasurer bonds of the U.S. as security for deposits of public money. Further, that the Act constituted “by itself a complete system for the establishment and government of national banks,” including full provisions for the winding up of the institutions and for the distribution of the entire assets of the banks in case of failure, giving preference only to claims of the United States in reimbursement for advances in redeeming certain notes of the bank. “These provisions must be deemed, therefore, to withdraw national banks which have failed, from the class of insolvent persons out of whose estates demands of the United States are to be paid in preference to the claims of other creditors.” These specific provisions were found “inconsistent and repugnant” to the general priority statute, so the priority statute was required to yield to the comprehensive banking act. A pivotal question before us is whether the provisions of 31 U.S.C. § 191 have been impliedly repealed as to state banks as well as to national banks.

The virtually identical predecessor of the federal priority statute was Revised Statutes § 3466. It was held to entitle Indian deposits to be priority obligations due from an insolvent state bank. Bramwell v. United States Fidelity & Guaranty Co., 269 U.S. 483, 46 S.Ct. 176, 70 L.Ed. 368 (1926).

“The lower courts rightly held that the amount owed by the bank . . . was a debt due to the United States.
“Appellee [assignee of the Indians] is entitled to priority if, within the meaning of section 3466, the bank . . . committed an act of bankruptcy.”

Of course the National Bank Act does not apply to state banks. We do not find the federal priority statute and the increases in security requirements to be irreconcilable statutes. The 1974 amendment to the Federal Deposit Insurance Act merely increases the insured amounts on public funds from $20,000 to $100,000. Rationale for the increase is reflected in remarks of Congressman Sullivan:

“Furthermore, the provisions of H.R. 1121 dealing with deposits of public funds will encourage greater competition among savings institutions in providing more attractive interest terms for the deposit of government funds.” 120 Cong. Rec. 2062 (1974).

This enactment did not change the fact that public funds must be adequately secured; it changed the security method to encourage higher interest rates by lowering the cost of collateralization borne by the savings institution.

Amendment or repeal by implication are not favored doctrines. “To be effective, an amendment of a prior act ordinarily must be express. Amendments by implication like repeals by implication, are not favored and will not be upheld in doubtful cases. The legislature will not be held to have changed a law it did not have under consideration while enacting a later law, unless the terms of the subsequent act are so inconsistent with the provisions of the prior law that they cannot stand together.” 1A Sutherland, Statutes and Statutory Construction 139-140, § 22.13 (4th ed. 1972).

“In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.” Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974).

The Supreme Court requires that 31 U.S.C. § 191 be construed liberally and states that only the “plainest inconsistency” would warrant a finding of implied exception. United States v. Moore, 423 U.S. 77, 96 S.Ct. 310, 46 L.Ed.2d 219 (1975).

Appellees’ argument that priority is waived by the provisions for security is dispelled in both the Cook County National Bank ease, supra and in the Bramwell case, supra. Where U.S. bonds supported the deposits but were insufficient to cover the amount lost, the U.S. Supreme Court has held that the deficiency would be entitled to priority if found within one of the priority statutes. The federal priority statute was, in a 1964 case, held to apply whether or not the debt was secured by a lien. United States v. Vermont, 377 U.S. 351, 357, 84 S.Ct. 1267, 12 L.Ed.2d 370 (1964).

Appellees present logical arguments supporting their position that the priority statute should no longer be held applicable to deposits in state banks. We cannot say, however, that it has been repealed by implication.

Nor do we find that Texas statutes concerning the rights of depositors of closed state banks prevent application of the federal priority statute to liquidation of those banks.

We sustain the appellant’s first point, and we agree with its second one: that the BIA is at least entitled to common creditor status. A claim which is determined not to be preferred is then a common claim.

“With these provisions for security against possible loss for moneys deposited, it would seem only equitable that the government should call for such security, and, if it prove insufficient, take the position of other creditors in the distribution of the assets of the bank in case of its failure.” Cook County National Bank v. United States, 107 U.S. 445, 2 S.Ct. 561, 27 L.Ed.2d 537 (1883).

The BIA filed its claim in compliance with Article 342-809 of Vernon’s Texas Civil Statutes and should at least be deemed a common creditor. Appellant was a depositor in the bank and is at least a common creditor for the amount owed above the value of the proceeds of the collateral. Denson v. Shaw, 62 S.W.2d 344, 347 (Tex.Civ.App.1933, writ ref’d).

For the reasons already stated, we hold that the trial court should have granted the motion for summary judgment filed by the BIA seeking priority status for its claim, including the principal amount plus interest to the date of bankruptcy.

The judgment of the trial court is reversed, and judgment is rendered that priority status be accorded to the BIA claim for the principal amount of $461,367 plus interest of $80,734.22.


author: SPURLOCK, Justice. MASSEY, Justice, SPURLOCK, Justice.

text:
    O., Appellant, v. P., Appellee.
    No. 17896.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 3, 1977.
    Opinion on Motion for Rehearing Dec. 15, 1977.
    Motion for Rehearing Dismissed Dec. 22, 1977.

      Don L. Prager, Fort Worth, for appellant.
    Odell F. McBrayer and William D. Her-ron, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

This is a case involving a suit for change of child custody under Tex. Family Code Ann. § 14.08 (1975). When the parties were divorced in November of 1972, the mother was appointed managing conservator of their two minor children. In February, 1975, the father filed a petition seeking a change of custody of the children from their mother to him. Trial was to the court. Having received two weeks of testimony, the trial judge took the case under advisement. Six weeks later, the court entered a temporary order whereby the daughter was to remain in the custody of her mother, but the custody of the son was changed to his father. Several months later, the trial court rendered a final judgment which made permanent the custody arrangement of the court’s temporary order. The mother has perfected her appeal.

We reverse and remand in part and affirm in part.

In child custody cases, the best interests of the children involved will be served by identifying the parties by their initials only. Thus, on our own motion, we have done so. Tex. Family Code Ann. § 11.19(d) (1974). The children will be referred to as “son” and “daughter.” Mr. P is the father of the children; Mrs. 0 is the mother of the children; Dr. 0 is the stepfather of the children; and Mrs. P is the stepmother of the children.

In her first twenty-three points of error, the appellant complains “that the trial court heard, considered, and acted upon evidence received after the trial on its merits without affording appellant an opportunity to be confronted by the witnesses and an opportunity to cross-examine those witnesses.”

The appellee denies the truth of appellant’s points of error # 1 through # 23. Appellee asserts that “the Trial Court considered only the evidence and testimony developed in the trial on the merits, and considered the evidence only for the purposes for which it was admissible.”

In an attempt to prove these points, the appellant filed with the district clerk nine documents denominated “bills of exceptions” and one document captioned “bystanders’ bill.” According to appellant, these “bills” show that the trial court committed the errors complained of in her first twenty-three points of error.

Appellee filed a motion to strike all of these “bills”; that motion was denied by this court, pending the oral argument of this case. Thus at the outset, we are confronted with the question whether these various “bills” are properly before this court.

All of these bills were filed with the district clerk by the appellant. Several days after filing, the district clerk brought them to the attention of the trial judge. Having read each of these bills, the trial judge wrote “refused” on each one and signed her name. In addition, the judge attached to each “bill” a document signed by her. Among other items, each document recites that “such purported Bill of Exceptions . . . and affidavit attached thereto are improper, inaccurate,..."

Tex.R.Civ.P. 372 clearly sets out the proper procedure whereby a party may make a bill of exception for proper inclusion in the appellate record. Tex.R.Civ.P. 372(f) provides that “[bjills of exceptions not in the statement of facts shall be presented to the judge for his allowance and signature.” Tex.R.Civ.P. 372 further sets out a procedure whereby the judge can sign the bill, suggest such corrections as he deems necessary, or file his own bill as will, in his opinion, present the ruling of the court as it actually occurred. Tex.R.Civ.P. 372(j) sets forth the procedure for making a “bystanders’ bill.” It provides that should a party be dissatisfied with the bill filed by the judge, he may procure the signatures of three respectable bystanders (who are citizens of Texas) who will attest to the correctness of the bill as presented by that party. Having followed this procedure, the party can file the bystanders’ bill as part of the record of the cause.

In this case, none of the documents entitled “bills of exception” were presented to the trial judge for her allowance and signature. This is an absolute requirement of Tex.R.Civ.P. 372(f). A bystanders’ bill can only be filed in a case when the party is dissatisfied with the bill of exceptions “filed by the judge.” Tex.R. Civ.P. 372(j). Since the applicable rule of civil procedure was not complied with, we hold that appellant’s nine purported bills of exceptions and one purported bystanders’ bill are not properly before this court. Accordingly, we shall not consider the contents of any of these documents.

Having examined the record before us, we conclude that there is nothing in the record which indicates that the trial court heard, considered, and acted upon evidence received after the trial on the merits without affording appellant an opportunity to be confronted by witnesses and an opportunity to cross-examine those witnesses. Accordingly, we overrule appellant’s points of error # 1 through # 23.

Appellant’s points of error # 24 through # 27 assert that the trial court erred in refusing to allow the children to testify and in refusing to interview the children in chambers with a court reporter as is authorized by Tex. Family Code Ann. § 14.07 (1975).

The amended Tex. Family Code Ann. § 14.07(c), effective September 1,1975, provides in part:

“In a nonjury trial the court may interview the child in chambers to ascertain the child’s wishes as to his conservator. . . ” (Emphasis added.)

The decision whether to interview a child in chambers has been left by the legislature to the sound discretion of the trial court. The section is not mandatory, even though such an interview will normally be very useful to the trial court in a nonjury case.

At the time of the hearing of this case in the trial court, the two children were seven and nine years of age. The general rule is that a person of fourteen years of age is presumed to be competent to give testimony. There is no such presumption for a child under that age, and in such circumstances, the child’s competency is practically determined by an examination as to his intelligence. 61 Tex.Jur.2d Witnesses § 66 at 610 (1964). Under the common law, in order for a child to be competent to testify, he must understand the nature and obligation of the oath. 61 Tex.Jur.2d Witnesses § 60 at 601 (1964).

In Cline v. May, 287 S.W.2d 226, 228 (Tex.Civ.App—Amarillo 1956, no writ), the court wrote:

“[W]hen children of competent qualifications under the rules of evidence are called to testify, the trial court does not have within his discretion the right to refuse to permit the children to testify...."

The Cline case, supra, was discussed with approval in the case of Callicott v. Callicott, 364 S.W.2d 455 (Tex.Civ.App.-Houston 1963, writ ref’d n. r. e.). In Callicott, supra, the child called to testify was eight years and three months old. In reversing and remanding the case, the court wrote:

“This court . . . knows of no rule that permits a court arbitrarily to refuse to permit a child of proper age and otherwise qualified to testify when one of the parties requests that he take the witness stand. . . . ” Id.... at 458.

In the case at bar, however, the record does not show what the testimony of the children would have been, if they had been permitted to testify. This could have been done by the preparation of a bill of exceptions. In the state of the record before this court, we cannot determine whether the exclusion of the children’s testimony should have been reversible error. Bell v. Hoskins, 357 S.W.2d 585 (Tex.Civ.App.-Dallas 1962, no writ); Otto v. Otto, 438 S.W.2d 587 (Tex.Civ.App.-San Antonio 1969, no writ). We overrule points of error # 24 through # 27.

In points of error # 28 and # 29, the appellant raises “no evidence” and “insufficient evidence” complaints. Both of these points are multifarious; however, in the interest of justice, we have considered them.

Appellant in point of error # 28 contends that the trial court erred in finding that the proper managing conservator of the son would be Mr. P, because of no evidence or, alternatively, insufficient evidence to show a material and substantial change in circumstances. In point of error # 29, the appellant contends that the trial court erred in finding that the proper managing conservator of the son would be Mr. P, because of no evidence or, alternatively, insufficient evidence that retention of the present managing conservator would be injurious to the welfare of the son.

The rules by which this court must be bound in reviewing these points of error are set forth in Judge Calvert’s article, “No Evidence” 'and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960).

Tex. Family Code Ann. § 14.08(c)(1) (1975) sets forth the requirements that must be met before the trial court may appoint a new managing conservator for a child. It provides:

“After a hearing, the court may modify an order or portion of a decree that: (1) designates a managing conservator if the circumstances of the child or parent have so materially and substantially changed since the entry of the order or decree to be modified that the retention of the present managing conservator would be injurious to the welfare of the child and that the appointment of the new managing conservator would be a positive improvement for the child; . . . .” (Emphasis added.)

Prior to September 1, 1975, which was the effective date of the amendment of Tex. Family Code Ann. § 14.08, the law in Texas on change of child custody was different from what it is currently. The prior law is indicated by the following language from the case of Becerra v. Garibaldo, 526 S.W.2d 780 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n. r. e.):

“Where a material change of conditions has been established by the evidence, the question then to be resolved is whether the best interest and welfare of the child would be served by changing custody from the custodian to the noncustodian.” Id. at 784.

The September 1, 1975 amendment added two very important requirements that must be met before a change of child custody can be ordered; i. e., that the retention of the present managing conservator would be injurious to the welfare of the child and that the appointment of the new managing conservator would be a positive improvement for the child. The person seeking the change of custody has the burden of proof under Tex. Family Code Ann. § 14.08(c) (1975). We note that the additional requirements have made a petitioner’s burden much more difficult.

The evidence shows that Mrs. O has violated Mr. P’s visitation rights on several occasions since the granting of their divorce. Mrs. O has even been held in contempt of court and fined for her interference with Mr. P’s visitation rights. We overrule point of error # 28 to the extent of appellant’s “no evidence” complaint. Having read the entire statement of facts, we also overrule point # 28 to the extent of appellant’s “insufficient evidence” complaint.

Now we will consider whether there is “no evidence” or alternatively “insufficient evidence” to show that the retention of the present managing conservator would be injurious to the welfare of the son.

A psychologist in marriage and family counseling testified for Mr. P that it would be an almost impossible situation for the children to continue living with Mrs. O. He further testified that it will be a foreboding future for the children if there is no change. We overrule appellant’s point of error # 29 to the extent of its “no evidence” complaint.

We have not attempted to summarize all of the testimony; however, the following is a fair summary of the evidence on appellant’s “insufficient evidence” complaint in point of error # 29.

Mrs. 0 was described by several witnesses as a strong-willed woman. (We cannot say that being strong-willed is a liability. We note that even many judges are strong-willed.) There is evidence in the record that after her divorce from Mr. P, she engaged in sexual relations with at least one man and has had an abortion. However, she has married a dentist since that time, and the marriage appears to be happy and without problems. She keeps a clean, neat home. Both Dr. and Mrs. 0 testified that they love the children. Dr. 0 participates in various activities with both of the children. Several witnesses testified that the children were always well-fed, well-clothed, neat in appearance, disciplined and happy. Mrs. 0 participates in the children’s school activities; she also sees that the children receive religious training.

By court order, a psychiatrist examined Dr. and Mrs. O and Mr. and Mrs. P. He concluded that both Dr. and Mrs. 0 are genuinely concerned about the best interest of the children. Further, he testified that it could be extremely disruptive to the children if they were removed from that family-

Other witnesses testified that Dr. and Mrs. 0 and the children constituted a happy family. The son’s teacher testified that the son seemed to be happy and had no disciplinary problems. The teacher further testified that Mrs. 0 bakes homemade bread and special desserts for the son’s lunches.

There is testimony that the son has had bruises on his back and legs. We note that it is common for young children to acquire some bruises in their activities while they are in the process of growing up. This is particularly true of a young boy who is very interested in various sports, as is true in this case.

Having read the entire statement of facts, we hold that the trial court’s holding that the retention of the son’s managing conservator would be injurious to his welfare is so against the great weight and preponderance of the evidence as to be manifestly unjust. Accordingly, we sustain appellant’s point of error # 29 to the extent of its “insufficient evidence” complaint. The statutory requirements of Tex. Family Code Ann. § 14.08(c)(1) (1975) have not been met.

Appellant asserts by her points of error # 39 through # 43 that the trial court erred in splitting the custody of the children between the parents because there is no compelling reason therefor, it is contrary to public policy, is not in the best interest of the children, and it is an abuse of discretion. We sustain these points of error.

The law in Texas is clear that the custody of two or more children of a marriage should not be divided, except for clear and compelling reasons. Griffith v. Griffith, 462 S.W.2d 328 (Tex.Civ.App.-Tyler 1970, no writ); Autry v. Autry, 350 S.W.2d 233 (Tex.Civ.App.-El Paso 1961, writ dism’d); Beasley v. Beasley, 304 S.W.2d 158 (Tex.Civ.App.-Dallas 1957, writ ref’d n. r. e.). See also 20 Tex.Jur.2d Divorce and Separation § 330 at 658 (1960); Annot., 98 A.L.R.2d 926 (1964). In the absence of such clear and compelling reasons, children should be raised with their brother(s) and/or sister(s). We find no such compelling reason in this case.

Since our holding as stated above requires a reversal, it is unnecessary to pass upon points of error # 30 through # 38 and # 44 and # 45 inclusive.

We affirm the judgment of the trial court to the extent that the daughter was left in the custody of the mother (which was not appealed.) We reverse the trial court’s judgment ordering the transfer of the son’s custody from Mrs. O to Mr. P and we remand this portion of the case to the trial court for proceedings not inconsistent with this opinion.

MASSEY, Justice,

concurring.

I concur with the majority solely because of the expressions therein condemning “split custody” in the absence of any evidence on the prior trial of clear and compelling reasons therefor.

I was author of this court’s opinion in Wood v. Wood, 510 S.W.2d 399 (Tex.Civ.App.-Fort Worth 1974, no writ) in which I went into detail on the matter of sufficiency of evidence to support a change of custody decree because of continuous interference with visitation rights of a parent out of custody. Despite amendment of the Texas Family Code, I adhere thereto.

ON MOTION FOR REHEARING

SPURLOCK, Justice.

Appellee, Mr. P, has filed a motion for rehearing. Appellant, Mrs. 0, has filed a motion to dismiss appellee’s motion for rehearing.

After the case was submitted to this court, Mr. P quit his job the day before Mrs. O’s court-ordered visitation day, vacated his apartment, filed a change of address card with the United States Post Office designating his mother as the custodian of his mail, and removed himself and the child from the jurisdiction of the court to a place unknown by appellant. All of this occurred prior to the time that this court handed down its opinion in this case, although these facts were not known by the court at that time. By our judgment, Mr. P was ordered to return the child to its mother. This judgment has not been complied with, and an extensive search is currently underway to determine the whereabouts of the child.

By his motion for rehearing, Mr. P seeks affirmative relief from this court, while he disobeys the court’s order in this very case. It would be a sad state of affairs, if persons could choose without penalty those court orders they wished to obey and those to disregard.

In Strange v. Strange, 464 S.W.2d 216 (Tex.Civ.App.-Fort Worth 1970), certified question in 464 S.W.2d 364 (Tex.1971), we were confronted with a motion to dismiss the appeal because of appellant’s failure to obey the trial court’s order, and we dismissed the appeal.

See Annot., “Dismissal of appeal for appellant’s failure to obey court order”, 49 A.L.R.2d 1425 (1956) for other cases where an appeal has been dismissed. The same policy reasons exist for the dismissal of a motion for rehearing as exist for the dismissal of an appeal. In both instances, the petitioner is seeking the relief of the appellate court, but presents himself to the appellate court with “unclean hands”. Furthermore, it is our judgment in this very case that is being disobeyed.

We have decided to be lenient; accordingly, we have decided to give Mr. P an opportunity to restore himself to the law-abiding community by abandoning his attempt to live outside the law. Therefore, we order that Mr. P’s motion for rehearing be dismissed, effective at 9:00 a. m. on December 22, 1977 (which is seven days from today), unless Mr. P complies with the order of this court that the son be returned to his motion, Mrs. O, in Tarrant County, Texas, in the presence of the sheriff of Tarrant County or one of his deputies, who, in the event of compliance shall give written notice to the clerk of this court certifying this fact.

The clerk is directed to dismiss Mr. P’s motion for rehearing at 9:00 a. m. on December 22, 1977, subject to the condition stated above. In the event of satisfactory compliance with such condition, dismissal will be denied and this court will proceed to consider Mr. P’s motion for rehearing.

SUPPLEMENTAL OPINION ON MOTION FOR REHEARING

In our opinion upon Mr. P’s motion for rehearing on December 15, 1977, the clerk was directed to dismiss his motion for rehearing at 9:00 a. m. on December 22, 1977, unless Mr. P complied with the order of this court that the son be returned to his mother, Mrs. O, in Tarrant County, Texas, in the presence of the sheriff of Tarrant County or one of his deputies, who, in the event of compliance, shall give written notice to the clerk of this court certifying this fact. Since no such certification has been received by the clerk within the time specified, Mr. P’s motion for rehearing is hereby ordered dismissed.


author: MURRAY, Justice. CADENA, Chief Justice,

text:
    ALLRIGHT AUTO PARKS, INC., Appellant, v. Richard C. MOORE, Appellee.
    No. 15800.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 9, 1977.
    Rehearing Denied Dec. 14, 1977.
    George M. Bishop, Houston, Harry A. Nass, Jr., San Antonio, for appellant.
    Steven D. Browne, Clemens, Spencer, Welmaker & Finck, San Antonio, for appel-lee.
   MURRAY, Justice.

Following trial without a jury, judgment was rendered by the district court in favor of plaintiff, Richard C. Moore, for $2,600.00, being the value of his automobile which was parked in defendant’s parking lot and thereafter stolen, and against defendant, Allright Auto Parks, Inc., who is in the business of operating an automobile parking lot at the San Antonio International Airport.

On February 28, 1974, plaintiff drove a 1972 Ford LTD convertible to a short term parking lot at the San Antonio Municipal Airport. Upon entering the lot, plaintiff received a ticket from a machine that con-tools the entrance gate and which causes the gate arm to raise and close automatically. Mr. Moore chose his own parking place and parked the car, locked it, and took the keys with him when he departed on a flight to Cleveland, Ohio. The machine receipt ticket was left in the automobile above the sunvisor. The short term lot is enclosed by a fence, with the exception of the entrances and exit. Upon exiting the lot, the driver presents the ticket he received from the entrance gate to the cashier for the purpose of calculating the fee owed for the particular length of time parked. The parties agreed that the car was stolen by an unknown third party sometime between February 28, 1974 through March 5, 1974.

Appellant, by point of error, asserts that the trial court erred because appellee failed to prove that a bailor-bailee relationship existed during the period of February 28, 1974 through March 5, 1974. Appellee relies on a presumption of negligence arising from the fact that the transaction was a bailment. Absent a bailment, it is apparent that the appellee has not met his burden of proof.

In order to constitute a bailment transaction there must be a contract, express or implied, delivery of the property to the bailee, and acceptance of the property by the bailee. An essential element of a bailment is delivery of the property by the bailor to the bailee, and without such delivery there can be no bailment. Allright, Inc. v. Elledge, 508 S.W.2d 864 (Tex.Civ.App.-Houston [1st Dist]), certified question answered, 515 S.W.2d 266 (Tex.1974), jdgmt. modified, 513 S.W.2d 875 (Tex.Civ.App.-Houston [1st Dist.] 1974, no writ); Bill Bell, Inc. v. Ramsey, 284 S.W.2d 244 (Tex.Civ.App.-Waco 1955, no writ); Rust v. Shamrock Oil & Gas Corp., 228 S.W.2d 934 (Tex.Civ.App.—Amarillo 1950, no writ); Panhandle South Plains Fair Ass’n v. Chappell, 142 S.W.2d 934 (Tex.Civ.App.-Amarillo 1940, no writ).

The very essence of a contract of bailment is that after its purpose has been fulfilled the bailed property shall be redelivered to the bailor. English v. Dhane, 294 S.W.2d 709 (Tex.1956); Panhandle South Plains Fair Ass’n v. Chappell, supra.

The creation of a bailment requires that possession and control over an object pass from the bailor to the bailee. We hold that a relationship of bailment has not been established, and control over the automobile did not pass from the bailor to the bailee. 1420 Park Road Parking, Inc. v. Consolidated Mut. Ins. Co., 168 A.2d 900 (D.C.Mun.App.1961); Equity Mutual Ins. Co. v. Affiliated Parking, Inc., 448 S.W.2d 909 (Mo.App.1969).

In a similar case, involving a theft of an automobile from a parking lot at O’Hare Airport in Chicago, in holding that there was no bailment, the Court stated:

While it is true . . . defendant could have restrained Wall from exiting the lot without paying the parking charges, this in no way relates to any possession or control which defendant may have exercised over the automobile, but merely relates to the power of defendant to enforce its lien for the parking charges.
While there need not be a delivery of the property in the technical sense, there must be an actual change of possession of the property from the bailor to the bailee.

Wall v. Airport Parking Co. of Chicago, 88 Ill.App.2d 108, 232 N.E.2d 38 (1967), aff’d, 41 Ill.2d 506, 244 N.E.2d 190 (1969).

In the present case the facts indicate that control did not pass from Mr. Moore to Allright Auto Parks, Inc. Mr. Moore chose his own parking space; locked the car; took the keys with him; and obtained a ticket from an automatic machine, issued not for the purpose of identifying the automobile, but rather for determining time in computing the fee.

Since no bailment contract may be implied, no presumption of negligence has been established and the plaintiff must prove affirmative negligence on the part of Allright Auto Parks, Inc. to establish liability for the theft of the car. There is no evidence from which that negligence may be inferred.

The judgment of the trial court is reversed and judgment is rendered for appellant.

CADENA, Chief Justice,

concurring.

Since plaintiff’s theory depends on the “presumption” of negligence which arises from the bailor-bailee relationship, I agree that the defendant is' entitled to rendition of judgment in its favor. I do not understand Justice Murray’s opinion as indicating that, in the absence of such relationship, the operator of a “park and lock” parking lot or garage owes no duty to take reasonable precautions to prevent theft of a customer’s car.


author: CADENA, Chief Justice.

text:
    William A. SWINNEY, Appellant, v. SCHAEFER ROAD RURAL WATER SUPPLY CORPORATION, Appellee.
    No. 15802.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 16, 1977.
    Rehearing Denied Dec. 14, 1977.
    Lonnie E. Chunn, Chunn & Chunn, New Braunfels, for appellant.
    William P. Dobbins, Dobbins & Harris, San Antonio, for appellee.
   CADENA, Chief Justice.

Defendant, William A. Swinney, appeals from a summary judgment granting plaintiff, Schaefer Road Rural Water Supply Corporation, a permanent injunction and damages.

Plaintiff owns and operates a water supply system. Its bylaws provide:

1. The system shall be operated on a fully metered basis, with no more than one user per single meter.

2. Membership in the water supply corporation will be available at the rate of $100.00 per member, and each member shall be entitled to one connection to plaintiff’s lines.

Defendant, who has paid the $100.00 membership fee, is the owner of 10 duplexes and 1 single-family residence within the area served by plaintiff. When defendant applied for water service, plaintiff insisted that defendant purchase a membership for each of the 21 separate dwelling units at a total cost of $2,100.00, and pay for a separate meter for each of the 21 dwelling units at a cost $100.00 per meter or the cost of installation, whichever might be higher. Defendant refused to pay such charges, contending that plaintiff’s requirements are excessive, illegal, and arbitrary. Defendant purchased a membership for his single-family residence and paid for the installation of a meter to measure the water used at such residence. He then ran a water line from the single-family residence to each of the 10 duplexes. Plaintiff then filed this suit to enjoin defendant from using its water to service the duplexes without paying the membership fee for each separate dwelling unit (totalling $2,000.00, in addition to the membership fee for the single-family residence), and paying for the installation of a separate meter for each of the 20 dwelling units located in the 10 duplexes, in addition to the meter servicing the single-family residence. Plaintiff also sought to recover the difference in the cost of water used by defendant to service the 21 living units through one meter and the cost of serving such 21 units through a separate meter for each unit.

Plaintiff filed its motion for summary judgment supported by affidavits reciting the facts as outlined above. Defendant filed no affidavits in opposition.

Defendant here contends that there was a genuine issue of material fact on the question of whether plaintiff’s charges are excessive, arbitrary, and discriminatory. Defendant also insists that the rules and regulations requiring separate memberships and meters for each of the 21 dwelling units are arbitrary and discriminatory.

Defendant’s insistence that the charges are excessive, arbitrary, and discriminatory, and that the provisions of plaintiff’s bylaws are discriminatory and arbitrary, do no more than present the affirmative defense of illegality. Rule 94, Tex.R.Civ.P. As to this affirmative defense, the burden was on defendant, as opponent of plaintiff’s motion for summary judgment, to present “evidence” at least raising an issue of fact concerning the elements of such defense. In the absence of affidavits or other summary judgment evidence tending to support defendant’s affirmative defense, the trial court properly granted plaintiff’s motion for summary judgment. Nichols v. Smith, 507 S.W.2d 518 (Tex.1974); Gulf, Colorado & Santa Fe Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1959).

The judgment of the trial court is affirmed.


author: NYE, Chief Justice.

text:
    Dr. Narciso CORTEZ, Appellant, v. The MEDICAL PROTECTIVE COMPANY OF FORT WAYNE, INDIANA, et al., Appellees.
    No. 1224.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 30, 1977.
    Rehearing Denied Jan. 5, 1978.

      Homero M. Lopez, Lopez, Uribe & Mon-son, Brownsville, for appellant.
    Gary R. Gurwitz, Atlas, Hall, Schwarz, Mills, Gurwitz & Bland, McAllen, for appel-lees.
   OPINION

NYE, Chief Justice.

Plaintiff, Dr. Narciso Cortez sued his medical malpractice insurer, Medical Protective Company, alleging that the insurance company had damaged his professional reputation and caused him severe emotional distress because it had settled a malpractice claim without his knowledge or consent. In response to special issues, the jury found that Dr. Cortez did not suffer any damages. Whereupon a judgment was entered in favor of the defendant company. Plaintiff’s sole point of error on appeal is material jury misconduct.

In April 1972, a Jose Gutierrez individually and on behalf of his son sued Dr. Cortez for an alleged negligent surgical treatment of his son. The record indicates Dr. Cortez had never treated this patient nor participated in the surgery leading to the negligence claim. Dr. Cortez carried a medical malpractice insurance policy with defendant Medical Protective and under the terms of the policy the insurance company had a duty to defend Dr. Cortez against any malpractice claim. Dr. Cortez telephoned an agent of defendant insurance company to inform him of the mistaken identity and to request that the insurance company take corrective action. The insurance agent told Dr. Cortez the name of the attorney assigned to his case and assured him the matter would be resolved. After several unsuccessful attempts to contact the insurance company’s attorney, Dr. Cortez again telephoned the agent and requested that another attorney be assigned to his case. Dr. Cortez received no further communication from the insurance company regarding the Gutierrez’ negligence suit. In the meantime, Dr. Cortez hired a private attorney who investigated and discovered that the suit against him had been settled. Thereafter, Dr. Cortez instituted this suit against his insurance company.

During the course of the trial, it was uncontradicted that Dr. Cortez’ insurance policy provided that the company “shall not compromise any claim — without the consent of the insured” and it was stipulated that the insurance company settled the lawsuit in question without the knowledge or consent of Dr. Cortez. Dr. Cortez’ motion for new trial alleged one ground of jury misconduct. It was to the effect that the jury disregarded the stipulation of the parties and determined that Dr. Cortez’ call to the insurance company constituted consent on the part of Dr. Cortez to the settlement without being further advised. This consideration by the jury was in total disregard of the evidence and the stipulation agreed to by the parties and as such was a determining factor by which the jury found that Dr. Cortez was not entitled to his claim of damages. The motion stated that affidavits of jurors were not attached because they were reluctant to sign the same. However, the affidavit of an investigator for Dr. Cortez’ attorney was attached. This affidavit read as follows:

“I, GUADALUPE OLVERA III, being under the employment of HOMERO M. LOPEZ, LAW OFFICES as Law Clerk and Investigator did talk to Mrs. Irene Atkinson Guerrero and Rogelio G. Garza in regards to the basis of their decision in Case No. 75-521-A, DR. NARCISO CORTEZ VS. THE MEDICAL PROTECTIVE COMPANY. Both Jurors informed me that the reason for rendering a Judgment against Dr. Cortez was because they understood that he had given his consent to the Insurance Company in Special Issue No. One for settlement purposes.
/s/ Guadalupe Olvera III
GUADALUPE OLVERA III”
(emphasis added)

Although no juror affidavits were attached to the motion for new trial, three jurors were present and were willing to testify. The record indicates the trial judge considered the motion and then heard the arguments of counsel to determine whether the jurors’ testimony should be allowed or prohibited as an invasion of the jurors’ mental processes. Dr. Cortez’ attorney argued to the court that the misconduct of the jury was as follows: that the jurors considered that Dr. Cortez’ phone call to the insurance company constituted consent by Dr. Cortez to settle the case in spite of the instructions of the court; that the jury disregarded the instructions of the court and if the jurors had been allowed to testify that they would state that Dr. Cortez was not entitled to damages because of the alleged telephone consent he had given to his insurance company. The trial judge told the attorney for Dr. Cortez that all of this amounted to an invasion of the jury’s mental processes, however, the trial court agreed to permit Dr. Cortez’ attorney to dictate a stipulation into the record as to the substance of the jury’s testimony, had they been permitted to testify. The stipulation which was agreed to by the attorney for the insurance company was as follows:

“What evidence I would produce would be, in substance, that more than three jurors have told me was the fact that they had taken that Dr. Cortez consented by virtue of calling the insurance company and, therefore, he had no right to file any suit or claim any mental anguish because he was part of that consent by virtue of the telephone call . . . ”

Based on this stipulation, the trial court then denied Dr. Cortez’ motion for new trial and refused to hear the jurors’ testimony.

The Texas Supreme Court in Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644 (1942), established rules to determine when a trial court must hear testimony of jurors during a hearing on a motion for new trial predicated on jury misconduct. The court there stated:

“The only remedy against ‘fishing expeditions’ where misconduct is charged, is to require that, by affidavits, the movant shall prove his good faith, and, by particularizing, demonstrate that his allegations of misconduct are based upon knowledge and not suspicion or hope.” “Therefore, we hold the correct rule is: (1) [I]f affidavits are attached to the motion showing material jury misconduct it is reversible error for the trial court to refuse to hear testimony on the motion,
(2) or, if the motion discloses a reasonable explanation and excuse as to why affidavits cannot be secured and exhibited, in connection with sufficient allegations of material jury misconduct, it is likewise reversible error to decline to hear testimony on the motion, * * * but
(3) in the absence of such affidavits or a reasonable excuse for not exhibiting the same, a refusal to hear testimony from the jurors on the motion is a matter within the sound discretion of the trial judge.” (emphasis added)

Our threshold inquiry is whether Dr. Cortez’ motion contains “sufficient allegations of material jury misconduct.” Rule 327, Texas Rules of Civil Procedure, requires more than “shot gun allegations” of misconduct as a basis for subjecting jurors to a searching inquisition in an effort to uncover suspected jury misconduct. Metcalfe v. Baker Pump Corp., 457 S.W.2d 346, 347-48 (Tex.Civ.App.-El Paso 1970, writ ref’d n. r. e.); Griffith v. Hudspeth, 378 S.W.2d 153, 156 (Tex.Civ.App.-San Antonio 1964, no writ); Walker v. Missouri Pacific Railroad Co., 425 S.W.2d 462, 466-67 (Tex.Civ.App.-Houston [14th Dist.] 1968, writ ref’d n. r. e.). The juror affidavits, or the motion itself where there is a reasonable excuse for the absence of juror affidavits, should set forth specific facts concerning the act of misconduct relied upon, naming or identifying the juror or jurors who committed the misconduct, and showing that, as a consequence, harm resulted to the movant. Sumners Road Boring, Inc. v. Thompson, 393 S.W.2d 690, 697 (Tex.Civ.App.-Corpus Christi 1965, writ ref’d n. r. e.); Moran Utilities Co. v. McHaney, 325 S.W.2d 712, 722 (Tex.Civ.App.-Beaumont 1959, writ ref’d n. r. e.); Smith v. Houston Transit Co., 215 S.W.2d 187, 190 (Tex.Civ.App.-Galveston 1948, writ ref’d n. r. e.); Robertson v. Humble Oil & Refining Co., 116 S.W.2d 820 (Tex.Civ.App.-Texarkana 1938, error dism’d). If the movant cannot state the facts specifically, he should plead the facts which show his inability to do so. The facts so pled must show that the charges are grounded on knowledge rather than suspicion. Union City Transfer v. Adams, 248 S.W.2d 256, 259-60 (Tex.Civ.App.-Fort Worth 1952, writ ref’d n. r. e.), cert. denied, 344 U.S. 912, 73 S.Ct. 334, 97 L.Ed. 703 (1953); Freedman Packing Co. v. Harris, 160 S.W.2d 130, 134 (Tex.Civ.App.-Galveston 1942, error ref’d w. o. m.).

The facts alleging jury misconduct must demonstrate that the charge of jury misconduct can be substantiated through admissible evidence at the hearing on motion for néw trial. Lanphier Construction Co. v. Fowco Const. Co., 523 S.W.2d 29 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n. r. e.); Sumners Road Boring, Inc. v. Thompson, 393 S.W.2d 690 (Tex.Civ.App.-Corpus Christi 1965, writ ref’d n. r. e.). Jury misconduct can be proved only through evidence of overt acts of misconduct. Fountain v. Ferguson, 441 S.W.2d 506, 507 (Tex.Sup.1969); Baucum v. Statewide Hot Shot, 550 S.W.2d 156 (Tex.Civ.App.-Corpus Christi 1977, writ ref’d n. r. e.). All conversation is an overt act but not everything said in the jury room is a proper subject of inquiry. Trousdale v. Texas & New Orleans Railroad Co., 154 Tex. 231, 276 S.W.2d 242, 243 (1955). “[I]t is never permissible to allow a juror to preserve or destroy his verdict by testifying to mental processes by which he reached the same.” Sproles Motor Freight Lines, Inc. v. Long, 140 Tex. 494, 168 S.W.2d 642, 644 (1943). Accord, Motley v. Mielsch, 145 Tex. 557, 200 S.W.2d 622 (1947); Republic Ins. Co. v. Hale, 128 Tex. 616, 99 S.W.2d 909 (1937); Baucum v. Statewide Hot Shot, 550 S.W.2d 156 (Tex.Civ.App.-Corpus Christi 1977, writ ref’d n. r. e.); Lanphier Construction Co. v. Fowco Const. Co., 523 S.W.2d 29 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n. r. e.). Mental processes are indicated when jurors use such words as “I thought,” “I understood,” “I wanted,” “I felt,” “I was convinced,” “The impression I got,” or “I considered.” Trousdale v. Texas & New Orleans Railroad Co., 154 Tex. 231, 276 S.W.2d 242, 243 (1955); Putman v. Lazarus, 156 Tex. 154, 293 S.W.2d 493, 494-95 (1956); Western Cotton Oil Co. v. Mayes, 245 S.W.2d 280, 288 (Tex.Civ.App.-Eastland 1951, no writ).

Dr. Cortez’ motion and his non-juror affidavit do not meet these standards. The motion and arguments contained general allegations to the effect that misconduct transpired during the jury’s deliberations and as a result, that the jury answered special issue number one in disregard of the parties’ stipulation and the trial court’s instructions. The motion for new trial fails to allege any overt statement, overt act or any specific facts to support the assertion that misconduct occurred. The general allegations in the motion that the “jury . disregarded . . . and instead considered;” “the reason they [jurors];” and “the reason for — was because they [jurors] understood . . . ” show that the mental processes and reasoning of the jury were at issue, not some material jury misconduct. In absence of an overt act of misconduct, a questioned finding which is based on the jury’s illogical reasons or erroneous conclusions from the evidence is not jury misconduct. Akers v. Epperson, 141 Tex. 189, 171 S.W.2d 483, 486 (1943). It is not misconduct for jurors to misunderstand or misinterpret a portion of the court’s charge and to argue an erroneous interpretation to the other jurors where facts and law outside the record are not brought to the jury’s attention. Whited v. Powell, 155 Tex. 210, 285 S.W.2d 364, 367 (1956); Transamerica Insurance Co. v. Beseda, 443 S.W.2d 915, 919 (Tex.Civ.App.-Corpus Christi 1969, writ ref’d n. r. e.). See also Compton v. Henrie, 364 S.W.2d 179 (Tex.Sup.1963); Adams v. Houston Lighting & Power Co., 158 Tex. 551, 314 S.W.2d 826 (1958); Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62 (1945); Blaugrund v. Gish, 142 Tex. 379, 179 S.W.2d 266 (1944).

Dr. Cortez’ motion for new trial was not supported by juror affidavits. The motion only stated that its contents were supported by the attached affidavit of the attorney’s investigator. The trial court is not required to hear evidence upon a motion or affidavits which on their face are insufficient because they do not show any overt act of misconduct and the allegations relate to the reasoning process by which the jury arrived at their verdict. Allala v. A. N. Tandy & Sons, 127 Tex. 148, 92 S.W.2d 227, 228 (1936); Zamora v. Zamora, 260 S.W.2d 604, 605 (Tex.Civ.App.-San Antonio 1953, writ ref’d); Griffith v. Hudspeth, 378 S.W.2d 153, 156 (Tex.Civ.App.-San Antonio 1964, no writ); Pete-Rae Development Co. v. State, 353 S.W.2d 324, 326 (Tex.Civ.App.-Eastland 1962, writ ref’d n. r. e.). An affidavit of a person who is not a member of the jury will not generally meet the requirements set forth in Roy Jones Lumber Co. v. Murphy, above cited, because such an affidavit is based upon hearsay testimony and not upon the personal knowledge of the affiant. Washington v. Griffin, 427 S.W.2d 136, 140 (Tex.Civ.App.-Houston [1st Dist.] 1968, writ ref’d n. r. e.); J. Weingarten, Inc. v. Azios, 384 S.W.2d 160, 162 (Tex.Civ.App.-Houston [1st Dist.] 1964, writ ref’d n. r. e.); Robertson v. Humble Oil & Refining Co., 116 S.W.2d 820 (Tex.Civ.App.-Texarkana 1938, error dism’d). Where juror affidavits are not attached to the motion for new trial, the motion must present a reasonable explanation and excuse for their absence. The only explanation or excuse contained in Dr. Cortez’ motion for the absence of juror affidavits was that the jurors contacted were “reluctant” to execute affidavits. The proffered excuse that the jurors who had been contacted refused to sign affidavits is insufficient without a further showing of the diligence used to obtain affidavits from the other jurors. Walker v. Missouri Pacific Railroad Co., 425 S.W.2d 462, 467 (Tex.Civ.App.-Houston [14th Dist.] 1968, writ ref’d n. r. e.). The Cortez motion implies that not all the jurors were interviewed and gives no explanation for not interviewing all of the jurors. This is not a sufficient excuse. Washington v. Griffin, 427 S.W.2d 136, 140 (Tex.Civ.App.-Houston [1st Dist.] 1968, writ ref’d n. r. e.); Walker v. Missouri Pacific Railroad Co., supra; Neuhoff Brothers Packers, Inc. v. Brooks, 410 S.W.2d 298, 300 (Tex.Civ.App.-Waco 1966, no writ); J. Weingarten, Inc. v. Azios, 384 S.W.2d 160, 162 (Tex.Civ.App.-Houston [1st Dist.] 1964, writ ref’d n. r. e.); Moran Utilities Co. v. McHaney, 325 S.W.2d 712, 722 (Tex.Civ.App.-Beaumont 1959, writ ref’d n. r. e.).

Since proper affidavits were not attached to the motion and the motion did not disclose a reasonable explanation and excuse as to why juror affidavits could not be secured and exhibited, it then became a determination of whether or not the trial judge abused his sound discretion in refusing to hear the testimony from the jurors on the motion. Although the appellant’s attorney had three of the jurors waiting and available to testify, the stipulation as to what they would testify to was an insufficient showing of material jury misconduct to constitute reversible error. Compare Murphy v. Davis, 305 S.W.2d 218 at 223 et seq. (Tex.Civ.App.-Beaumont 1957, no writ) and see Roy Jones Lumber Co. v. Murphy, supra. We hold that the trial court did not abuse its discretion in refusing to hear the jurors’ testimony. The judgment of the trial court is AFFIRMED.


author: OSBORN, Justice.

text:
    The HOME INSURANCE COMPANY et al., Appellants, v. BATES WELL SERVICE, INC., Appellee.
    No. 6661.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 30, 1977.
    Rehearing Denied Dec. 21, 1977.

      Johnson, Guthrie, Nash & Shanklin, Dallas, for appellants.
    Warren Burnett, Associated, Warren Burnett, Richard J. Clarkson, Odessa, for appellee.
   OPINION

OSBORN, Justice.

We grant in part Appellee’s Motion for Rehearing, and our prior opinion in this case, dated October 12, 1977, is withdrawn. This is a venue case. The trial Court overruled the plea of privilege of The Home Insurance Company and The Home Indemnity Company. We affirm as to The Home Indemnity Company and reverse and order the case as to The Home Insurance Company transferred to Dallas County.

Appellee filed a suit in Ector County against Home Insurance Company on October 13, 1971, seeking to recover under a policy of insurance for damages to a well service rig resulting from a “pull-in” or “collapse” as defined in the policy. Home Insurance Company filed a plea of privilege to be sued in Dallas County. Appellee filed a controverting plea asserting the provisions of Subdivisions 5 and 23. The affiant swore “that the allegations contained in the foregoing plea in Plaintiff’s Original Petition are in all things true and correct.” Home Insurance Company filed a special exception contending that the controverting plea “does not allege nor swear to any specific facts” to support an exception to Article 1995. A hearing was held on February 5, 1973, and the policy was received in evidence. It shows to have been issued by Home Indemnity Company. Proof was offered concerning the rig collapse in Ector County. The Court did not rule on the matter at that time.

On April 9, 1973, Appellee filed its First Amended Original Petition in which it joined Home Indemnity Company as a party Defendant. This pleading alleged the issuance of the policy and the loss resulting from the rig “pull-in” or “collapse” and sought recovery for the resulting damages. Home Indemnity Company filed a plea of privilege to be sued in Dallas County. Ap-pellee filed a controverting plea adopting and incorporating its First Amended Original Petition and asserted venue in Ector County under Subdivisions 5, 7 and 23. Again, the affiant stated “that the allegations contained in the foregoing plea in Plaintiff’s First Amended Original Petition are in all things true and correct.” A similar special exception was filed to this controverting plea. On May 31, 1973, Appel-lee’s Second Amended Original Petition was filed to allege for the first time that the well service rig “was damaged in Ector County, Texas.” This pleading was not sworn to and the controverting plea was not amended.

On November 15, 1976, another hearing was held and at that time Mr. Bates testified, and at the conclusion of the hearing his deposition which had been taken in 1971 was offered in evidence and it was agreed by counsel for Appellants that it could be received and considered by the judge. That deposition which had originally been taken by counsel for the Appellants contained testimony as to the rig collapse and that it occurred at a location in Ector County, Texas. After that hearing, the trial Court denied a change in venue.

In oral argument, counsel for Appellee acknowledged that Subdivisions 5 and 7 are not applicable. Reliance is now placed solely upon Subdivision 23 to support the trial Court’s ruling. Appellants contend that the affidavit in each controverting plea is insufficient because the plea is not sworn to and only the allegations in the Petition and First Amended Petition are sworn to be true and correct. Appellee asserts any defect has been waived because the special exception was too general and did not aver ■to any defect in the affidavit. This issue need not be decided.

The evidence shows that the policy was issued by Home Indemnity Company and counsel for Appellee so acknowledged at the last hearing. The Court asked: “who is the correct insurance company?” Counsel replied: “Home Indemnity Company, Your Honor.” Thus, there was no proof of a cause of action against Home Insurance Company when the policy which was received into evidence showed to have been issued by another company.

Appellee contends venue can be sustained in Ector County against Home Indemnity Company because that was the County in which the cause of action or a part thereof arose and that was the County in which the Plaintiff resided and the Defendant-corporation had an agency or representative in such County.

The filing of the plea of privilege constituted prima facie proof of the Defendant’s right to a change of venue. Rule 86, Tex.R.Civ.P. The burden was then upon the Appellee to plead and prove the necessary venue facts to establish an exception to venue in the county of one’s residence under Article 1995, Tex.Rev.Civ.Stat. Ann.

Much of the problem in this case arises from a defective affidavit in the controverting plea. As noted above, the affi-ant swore that the allegations contained in the foregoing plea “in” Plaintiff’s Petition are true and correct, rather than swearing that the allegations contained in the foregoing plea “and” the Petition are true and correct. And once the Second Amended Original Petition was filed to allege the damage in Ector County, it was incumbent upon the Appellee to amend its controverting plea to swear to that essential venue fact. Danaho Refining Company v. Dietz, 378 S.W.2d 412 (Tex.Civ.App.-Corpus Christi 1964, no writ); Beasley v. Barshop, 352 S.W.2d 927 (Tex.Civ.App.-San Antonio 1961, no writ). That was not done in this case. Thus, at the time of the venue hearing, the Appellee had not sworn to the essential venue facts upon which it relied because there was no sworn allegation that the cause of action or a part thereof arose in Ector County, and neither the three petitions nor the two controverting pleas named or mentioned any agent of Home Indemnity Company being in Ector County, Texas. At that stage of the proceedings, the trial Court apparently should have sustained the special exception, although a question exists as to whether or not it was too general and failed to point out the specific error in the controverting affidavit.

As noted above, at the last hearing evidence was offered through the deposition of Mr. Bates as to the fact that the cause of action, or a part thereof, arose in Ector County and there was no objection to that testimony. We then become confronted with the question as to whether or not the defect in the pleadings was tried by consent under Rule 67, Tex.R.Civ.P. We conclude that it was tried by consent.

This same issue was before the Court in Republic Bankers Life Insurance Company v. McCool, 441 S.W.2d 314 (Tex.Civ.App.-Tyler 1969, no writ). The Court in that case, in applying Rule 67, Tex.R.Civ.P., and holding that a waiver existed, said:

“Thus, even though it be conceded, as defendant contends, that the trial court improperly overruled its special exceptions and that there was no waiver of the defective controverting plea at the pleading stage of the trial, nevertheless, under the provisions of Rule 67, supra, defendant is required to go further and reassert its objection to the insufficiency of the pleadings at the proof stage, otherwise the pleadings will be treated as sufficient. Rule 67, supra; Burney v. Winfrey [(Tex.Civ.App.) 329 S.W.2d 136], supra; 2 McDonald, Texas Civil Practice, Sec. 518; [sic] Waiver of Pleading Defects and Insufficiencies in Texas, 36 Texas Law Review, page 459. If the pleadings are to be treated as sufficient because of the failure to object to the evidence offered by plaintiffs, it follows that the error of the court in overruling the exceptions at the pleading stage of the trial was harmless. Rule 434, T.R.C.P.”

In Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562 (1943), the Court held that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings, and thus an issue could be raised in behalf of a party who had filed no pleading whatsoever. Rule 67 has been held applicable in other venue cases where there were pleading defects and the issues were tried by consent without objection. Mobil Oil Corporation v. Gibbons, 511 S.W.2d 600 (Tex.Civ.App.-Forth Worth 1974, no writ); Atlantic Mutual Insurance Company v. Farmers Cooperative Association, 466 S.W.2d 419 (Tex.Civ.App.-El Paso 1971, no writ).

The particular question with regard to whether or not there is a waiver in spite of the special exception is noted in 2 McDonald, Texas Civil Practice, Sec. 5.18, and particularly with regard to the query made in the footnote on page 49 with the answer appearing in the pocket part based upon the McCool case.

We overrule the points of error of The Home Indemnity Company and sustain the points of error of The Home Insurance Company, and order the case as to The Home Insurance Company transferred to Dallas County, Texas.

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


author: MOORE, Justice.

text:
    Walentina SUMARUK, Appellant, v. John H. TODD, Independent Executor of the Estate of H. B. Thomson, Deceased, Appellee.
    No. 1064.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 1, 1977.

      C. Thomas Wesner, Jr., Wynne & Jaffe, Dallas, for appellant.
    David N. Kitner, Strasburger, Price, Kel-ton, Martin & Unis, Rowland B. Foster, Dallas, for appellee.
   MOORE, Justice.

This is an appeal from a summary judgment. Plaintiff John H. Todd, independent executor of the estate of H. B. Thomson, deceased, brought suit to recover the outstanding amount of a purported $30,000 loan given by the deceased to defendant, Walentina Sumaruk, his former nurse. Defendant answered with a plea to the jurisdiction and affirmatively alleged that the $30,000 amounted to an outright gift or, alternatively, a loan to be extinguished upon the lender’s death. Plaintiff filed a motion for summary judgment and produced summary judgment proof attempting to show that the $30,000 check given to defendant was a loan. In reply to the motion defendant offered summary judgment proof attempting to support the allegations in her answer. After overruling defendant’s plea to the jurisdiction, the trial court granted plaintiff’s motion for summary judgment in the amount of $28,750. Defendant perfected this appeal.

We reverse and remand in part and affirm in part.

At the outset we are confronted with a jurisdictional question. Under her first point of error the defendant contends that the trial court lacked jurisdiction because an action of this type lies within the exclusive jurisdiction of the statutory probate court, as it is a matter incident to an estate —specifically, a claim by an estate — which is covered under Paragraph 3 of sec. 5 of the Texas Probate Code, as amended in 1973. This provision reads:

“In those counties where there is a statutory probate court ... all applications, petitions and motions regarding probate, administrations, . . . shall be filed and heard in such courts . All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate, including but not limited to, all claims by or against an estate . . . .” Tex.Prob.Code Ann., sec. 5, paragraph 3 (as amended 1973).

In 1975 the statute was again amended, making little substantive change in the 1973 version. As the instant case arose prior to 1975, the 1973 amended section is thought to control. However, our holding in regard to the jurisdictional question applies as well to the 1975 version.

There is no question that this section provides that in counties such as Dallas in which there are both district and statutory courts, the statutory probate court has exclusive jurisdiction over applications, petitions and motions regarding probate and administration. Woodward & Smith, 17 Texas Practice, Ch. 1, sec. 9 (Supp.1975). Defendant •, contends that the second sentence “all courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate . . . .” means that the statutory probate court has exclusive jurisdiction over all matters incident to an estate, including claims by an estate, and therefore the district court improperly decided that it had jurisdiction.

We are not in accord with defendant’s interpretation. The motivation behind the enactment of this section was to increase the powers of the probate court so that it could more fully and ably settle decedent’s estates in the one proceeding. See Schwartzel & Wilshusen, Texas Probate Jurisdiction: New Patches for the Texas Probate Code, 54 Texas L.Rev. 372, 382-3 (1976). Therefore, we interpret this section dealing with “matters incident to an estate” to apply only to those matters in which the “controlling issue” is the settlement, partition or distribution of an estate. Schwartzel & Wilshusen, 54 Texas L.Rev. 372 at 383, supra. If a probate proceeding, such as the administration of the estate, were pending in the statutory probate court at the time this suit was filed, section 5 of the Probate Code would apply to allow the claim by the estate to be filed in the statutory probate court in which such probate proceeding was pending. The record does not reveal that any probate proceeding was taking place or pending at the time the instant suit was filed. Since no administration of the estate was taking place, sec. 5 of the Probate Code dealing with matters incident to an estate does not come into play. Boyd v. Ratliff, 541 S.W.2d 223 (Tex.Civ.App.-Dallas 1976, no writ). See also Cowgill v. White, 543 S.W.2d 437 (Tex.Civ.App.-Corpus Christi 1976, writ ref’d n. r. e.); Parr v. White, 543 S.W.2d 440 (Tex.Civ.App.-Corpus Christi 1976, writ ref’d n. r. e.).

Section 5 does not purport to affect the jurisdiction of the district court over matters considered incident to an estate, such as claims' by an estate, when no administration is pending and none is necessary. Woodward & Smith, 17 Texas Practice, Ch. 1, sec. 10 at 16, and Ch. 2, sec. 23 at 20 (Supp.1975). Article 5, sec. 8, of the Texas Constitution grants to the district court the general jurisdiction of a probate court, which includes the power to hear claims by an estate:

“The district court, concurrently with the county court, shall have the general jurisdiction of a probate court. . . . ” Tex.Const. art. 5, sec. 8.

In Boyd v. Ratliff, supra, the court held that, as no administration of the estate was pending or taking place in the probate court, the statutory probate court did not have exclusive jurisdiction to construe a will. The court reasoned that actions to construe a will had always been within the jurisdiction of the district court, and sec. 5 of the Probate Code did not operate to eliminate that jurisdiction.

We conclude that the trial court did not err in assuming jurisdiction over the cause. Defendant’s first point of error is overruled.

Under her second point of error defendant complains of the action of the court in granting the plaintiff a summary judgment. She argues that a genuine issue of fact was created as to whether the $30,000 which she received from Thomson was a gift or a loan. Plaintiff argues that the summary judgment proof establishes that it was a loan and that therefore the summary judgment in his favor should be sustained.

The following facts are not in dispute. Defendant, Walentina Sumaruk, was a nurse to Mr. Thomson and his wife for approximately four and one-half years prior to Thomson’s death. Six months before his death Thomson delivered a check dated April 8, 1974, in the amount of $30,000 payable to Sumaruk for the purpose of enabling her to pay a portion of the purchase price of a condominium. The check had the word “loan” written upon it. No terms of the loan agreement appeared on the check nor is there any evidence in the record showing the execution of a written loan agreement.

During July 1974 the deceased became terminally ill and Mr. Todd, executor of the estate and Thomson’s son-in-law, came with his wife to live with Thomson until his death in October 1974. In August 1974 Thomson executed “Codicil E,” which states that the $30,000 advanced to Sumaruk was a loan and which purports to set out the terms of the loan agreement. Defendant argues that this codicil was prepared under the undue influence of Todd, who, according to defendant, became very angry with Thomson before his death upon discovering the record of the $30,000 check payable to her in Thomson’s books.

Defendant in fact used the $30,000 to pay a portion of the purchase price of a condominium. Prior to Thomson’s death, defendant made five $250 monthly payments to him, which she claims are pursuant to her understanding from Thomson that she could pay him back something if she desired.

Plaintiff’s motion for summary judgment alleged that the $30,000 advanced to defendant Sumaruk was a loan. Attached to the motion was a copy of the $30,000 check in question, a copy of “Codicil E,” various admissions by defendant in response to interrogatories submitted to her, and an affidavit of Mr. Todd attesting to the “loan” status of the $30,000 check. Defendant’s answer to the motion was supported by affidavits from Walentina Sumaruk and Marianne Gassner, another nurse in the employ of Mr. Thomson, which affidavits attested to the “gift” status of the $30,000 check. Further affidavits supporting defendant’s answer were from Father Guy Usher, who attested to Thomson’s propensity for giving, and from Franz Gassner, Marianne Gassner’s husband.

It has been well-established that the question on appeal is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of plaintiff’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). The burden of proof on the motion for summary judgment is on the movant, and all doubts as to the existence of a genuine issue of a material fact are resolved against him. Farley v. Prudential Insurance Co., 480 S.W.2d 176 (Tex.1972).

As previously noted, the record does not show the existence of any signed, written loan agreement containing any specified terms. Before the word “loan” appearing on the check in question can be given conclusive effect, it must be shown that the notation was intended to constitute a part of the parties’ contract and that it was stated in such a manner that the endorser was bound to understand the legal effect of his acceptance. Coastal Plains Development v. Tech-Con Corp., 531 S.W.2d 143 (Tex.Civ.App.-Houston [1st Dist.] 1975, writ ref’d n. r. e.). Similarly, while the provision in “Codicil E” concerning the terms of the alleged loan agreement may be some evidence of testator’s intent at the time of the delivery of the $30,000 check, the language used in the codicil cannot be given conclusive effect. A codicil, as a will, speaks only from the date of testator’s death, and therefore its provisions cannot be conclusively applied to some former event in time. Willis v. Snodgrass, 302 S.W.2d 706 (Tex.Civ.App.-Texarkana 1957, writ ref’d).

The three elements necessary to establish the existence of an outright gift are delivery, acceptance, and intent to make a gift. 27 Tex.Jur.2d “Gifts” sec. 6 at 151. The defendant takes the position that her reply affidavits are sufficient to show there was a genuine issue of fact as to deceased’s intent, namely, that he intended to make either an outright gift or a loan to be extinguished upon his death.

Defendant relies on the affidavit of Marianne Gassner, another nurse to Mr. Thomson prior to his death, in which she states:

“In the Spring of Í974 I heard Mr. Thomson say, ‘he was so happy that he could give her the money to get the house.’ I understood from him that so long as he lived she was to repay him something, but it was to be considered a gift in the event of his death.”

Although the second sentence beginning with “I understood from him” raises the issue of deceased’s intent to make a loan extinguishable upon death, this statement cannot be considered, because declarations consisting of mere conclusions of fact, without sufficient supporting evidence, are insufficient to raise a genuine issue of fact. Jones v. United States Fire Ins. Co., 420 S.W.2d 160 (Tex.Civ.App.-Amarillo 1967, writ ref’d n. r. e.); Leach v. Cassity’s Estate, 279 S.W.2d 630 (Tex.Civ.App.-Fort Worth 1955, writ ref’d n. r. e.).

However, we think the other statement wherein she testified “I heard Mr. Thomson say ‘he was so happy that he could give her the money to get the house’ ” is sufficient to raise a genuine issue of material fact as to the true intent of the deceased in turning over the funds to the defendant. In its usual context the word “give” means “to bestow without a return.” Webster’s New Collegiate Dictionary (1959). Consequently, we believe that this declaration in Marianne Gassner’s affidavit, coupled with the affidavit of Father Usher attesting to Mr. Thomson’s generous nature, is some indication that Mr. Thomson at that time may have intended to make an outright gift of the $30,000 and not a loan as contended by the executor.

There is no question that the foregoing statement is admissible as a declaration against plaintiff’s interest. Lord v. New York Life Ins. Co., 95 Tex. 216, 66 S.W. 290 (1902); Carter v. Carter, 391 S.W.2d 546 (Tex.Civ.App.-Dallas 1965, no writ). Furthermore, it has been held that statements such as this one are admissible over hearsay objections to help solve an ambiguity as to intent to make an alleged gift. Kemp v. Metropolitan Life Ins. Co., 205 F.2d 857 (5th Cir. 1953).

Accordingly, we sustain defendant’s second point of error and hold that plaintiff’s summary judgment proof failed to establish as a matter of law that there was no genuine issue of fact as to one or more of the essential elements of plaintiff’s cause of action. It follows that the summary judgment in favor of plaintiff was improvidently granted.

In view of our decision to reverse and remand for a trial on the merits, we need not reach appellant’s third point of error.

Before concluding, one other aspect of the case must be mentioned. The record reveals that at the time the court entered the summary judgment in favor of the plaintiff, the defendant had on file a cross-action seeking to recover from the executor the sum of $3,000 which she alleged was bequeathed to her under the terms of “Codicil E” of Thomson’s will. All parties initially overlooked the fact that the counterclaim had not been disposed of. When it was discovered that the cross-action had not been disposed of and that the summary judgment in favor of the plaintiff was therefore interlocutory, plaintiff filed a motion for summary judgment on the cross-action.

After a hearing the trial court granted the plaintiff’s second motion for summary judgment. A second summary judgment was then entered reaffirming the first interlocutory judgment and denying the defendant any relief on her cross-action.

Defendant has no point of error and makes no complaint on this appeal with regard to that part of the judgment denying her a recovery on her counterclaim. The cause of action asserted by her in her counterclaim has therefore been abandoned. Bickler v. Bickler, 403 S.W.2d 354 (Tex.1966); Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83 (1955). Accordingly, this phase of the judgment is affirmed.

The judgment of the trial court is reversed and remanded in part and affirmed in part.