text:
    Larry Julian BLACKMON, Appellant, v. Patricia Louise BLACKMON, Appellee.
    No. 16604.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 2, 1975.
    K. D. Keenan, Houston, for appellant.
    A. L. Vetrano, Jr., Houston, for appellee.
   On Motion to Suspend Judgment.

EVANS, Justice.

The question presented by this motion is whether notice of trial setting given in one cause may be considered appropriate notice of setting in a related cause filed and maintained under a separate docket number, where there has been no consolidation of the cases. We hold that it does not afford proper notice.

Appellee issued notice to appellant of trial setting in Cause No. 1,020,274, a proceeding brought by appellee for writ of habeas corpus. Appellant filed a motion to strike the trial setting in that case which the court overruled. The court then proceeded to trial on July 14, 1975, and on July 22, 1975, purported to enter judgment in both Cause No. 1,020,274 and in Cause No. 906,672, a contempt proceeding, although there had been no consolidation of the two cases. The judgment entered purported to be a modification of prior orders affecting the custody of the minor child and of the amounts to be paid as child support. Appellant has filed separate appeals under both cause numbers. He asserts on this appeal from the order entered in Cause No. 906,672, that he had no notice of any trial setting in this case prior to the hearing date and thus his rights of due process were violated. He states that he is in jeopardy of punishment under the order entered on July 22, 1975 in this case (No. 906,672) and asks that said order be suspended under the provisions of Section 11.19(c) of the Texas Family Code pending hearing of his appeal.

Appellant’s motion is granted and the order appealed from in said Cause No. 906,-672 is ordered suspended pending final hearing of such appeal.


source: Caselaw Access Project

author: AKIN, Justice.

license: Public Domain

text:
    WILMER-HUTCHINS INDEPENDENT SCHOOL DISTRICT, Appellant, v. A. Eugene BLACKWELL et al., Appellees.
    No. 18724.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 2, 1975.
    Rehearing Denied Nov. 6, 1975.

      R. Jack Ayres, Jr., Kelsoe, McDonald & Ayres, Dallas, for appellant.
    William A. McKenzie, McKenzie & Baer, Dallas, for appellees.
   AKIN, Justice.

This is an election contest filed by A. Eugene Blackwell and Donald Lucky to set aside a school bond election held by the Wilmer-Hutchins Independent School District authorizing the issuance of ten million dollars in school district bonds. As grounds, contestants alleged fraud and other irregularities. Acting solely on a resolution passed by the Wilmer-Hutchins School Board Trustees and a stipulation in accordance with the resolution, the trial court entered a consent judgment on May 1,1975, setting aside the results of the bond election and ordering a new election. This judgment assessed costs against the school district in contravention of Tex.Election Code Ann. art. 9.31 (Vernon 1967).

On May 27, 1975, after the expiration of time required for filing a motion for new trial prescribed by Tex.R.Civ.P. 329b, the school district and Billy F. Kyser, president of its board of trustees, filed a motion for new trial to which was attached a resolution of the board withdrawing consent to the judgment. After a hearing, the court signed an order overruling the district’s motion for new trial on May 30, 1975. On the same day, the court also signed an amended judgment identical to its judgment of May 1, except that costs were taxed in compliance with Tex.Election Code Ann. art. 9.31 (Vernon 1967). The school district and Kyser appeal from this amended judgment.

The questions presented are: (1) Did the judgment of May 30, which altered the judgment of May 1, as to costs, supersede the previous judgment for purposes of appeal? (2) Did the trial court err in rendering the amended judgment of May 30, based upon the previous consent judgment of May 1, when consent was withdrawn? We answer these questions in the affirmative.

Accordingly, we reverse the judgment of the trial court and remand this cause for further proceedings.

1. The Effect of the Amended Judgment of May 30

Contestants argue that the amended judgment of May 30 merely modified the language of the original consent judgment of May 1 and is, therefore, binding on all parties thereto. We cannot agree. The amended judgment of May 30 was not merely a clerical correction of the earlier judgment. In changing the assessment of costs, it corrected a judicial error. Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex.1970); Finlay v. Jones, 435 S.W.2d 136 (Tex.1968); Tex.R.Civ.P. 316, 317; see Reavley & Orr, Trial Court’s Power to Amend Its Judgments, 25 Baylor L.Rev. 191, 194 (1973). This the trial court had plenary power to do since the amended judgment was rendered when the trial court had jurisdiction of both the subject matter and the parties. City of Wichita Falls v. Dye, 517 S.W.2d 680, 683 (Tex.Civ.App. — Fort Worth 1974, writ ref’d n. r. e.); Tex.R.Civ.P. 329b(5). Because there may be only one final judgment in a case (Tex.R. Civ.P. 301), the amended judgment superseded the judgment of May 1 and was a new judgment. Home Indemnity Co. v. Muncy, 449 S.W.2d 312, 315 (Tex.Civ.App.— Tyler 1969, writ ref’d n. r. e.); Webster v. Smith, 226 S.W.2d 250 (Tex.Civ.App. — East-land 1950, no writ). Since appeal has been timely perfected from the final judgment, we conclude that we have jurisdiction of this appeal. Tex.R.Civ.P. 324.

Contestants argue further that, since the district failed to file a motion for new trial pursuant to Tex.R.Civ.P. 325 in reference to the amended judgment, the district has waived its right to complain of the amended judgment on appeal. We cannot agree. Tex.R.Civ.P. 325 provides that a motion for new trial shall be required in instances of newly discovered evidence, misconduct, fraud or the like. The instances enumerated ordinarily are not disclosed until after judgment. The evident purpose of the rule is to require presentation to the trial court of matters not previously called to its attention and of matters not apparent in the record. Ingram v. Ingram, 380 S.W.2d 666, 669 (Tex.Civ.App. — Dallas 1964, writ dism’d). We conclude that Tex.R. Civ.P. 325 is inapplicable here because the record affirmatively shows that the district called its lack of consent to the court’s attention before the amended judgment was rendered.

2. Consent to Judgment

Consent to support an agreed judgment must exist at the very moment the court undertakes to make the agreement of the parties the judgment of the court. Burnaman v. Heaton, 150 Tex. 333, 338, 240 S.W.2d 288, 291 (1951). At the time of the entry of the amended judgment, it was undisputed that the district had withdrawn its consent. We hold, therefore, that it was error for the trial court to render the judgment of May 30 when it knew that consent was lacking.

In view of our holding, we do not reach the question whether a trial court may render a judgment sustaining an election contest and nullifying the declared result of the election without hearing evidence supporting the grounds on which the election has been contested. In this connection see Ramsey v. Dunlop, 146 Tex. 196, 202-03, 205 S.W.2d 979, 983 (1947); Caldwell v. Crosser, 20 S.W.2d 822, 828 (Tex.Civ. App. — Amarillo 1928, writ ref’d). See also People v. Herrin, 284 Ill. 368, 120 N.E. 274 (1918). Neither do we deem it necessary to consider whether the original judgment may be enforced as a contract in view of the public interest involved. But to protect the interest of the public, the trial court must not act hastily in entering a judgment setting aside the results of an election.

Reversed and remanded.


author: GUITTARD, Justice.

text:
    AMERICAN CENTURY MORTGAGE INVESTORS and Dan M. Cain, Substitute Trustee, Appellants, v. REGIONAL CENTER, LTD., Appellees.
    No. 18703.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 2, 1975.
    Rehearing Denied Oct. 22, 1975.

      Mark T. Davenport, Atwell, Cain & Davenport, Dallas, for appellants.
    Christopher M. Weil, Weil, Craig & Fisch-man, Dallas, for appellees.
   GUITTARD, Justice.

This appeal is from a temporary injunction restraining a trustee’s foreclosure sale under a deed of trust. The principal ground alleged for injunctive relief is that the loan secured by the deed of trust was usurious because the note provided for interest at a rate permitted only for a corporate borrower, and that the actual borrower was not the corporation which had signed the note and deed of trust but was a limited partnership for whose benefit the corporation was acting. We reverse the trial court’s order and dissolve the temporary injunction because we hold that no probable right of recovery was shown by the evidence at the temporary injunction hearing. More specifically, we hold that there is no evidence to support an implied finding by the trial court that the lender knew that the arrangement was a subterfuge to cloak a usurious transaction, and we hold also that in the absence of such knowledge, the transaction cannot be held usurious because of failure of the lender to go behind the loan documents and the legal record of the title and inquire whether the loan to the corporation was a subterfuge.

We consider first the evidence bearing on the issue of whether the lender knew that the corporation was not the actual borrower. The facts on this point are without serious disputé. The moving party behind the transaction was Frank Campbell, an experienced real estate broker engaged in the business of promoting and managing joint ventures in real estate. He was president of the ostensible borrower, Investment Real Estate Company, Inc., a corporation organized in 1970 and used by him in his business. There is no contention that Investment Real Estate Company was not at all relevant times a legitimate, functioning corporation.

In November 1971, Campbell acquired the right to purchase approximately twenty-seven acres of undeveloped land adjacent to Carpenter Freeway in Irving, Texas. Several days later he agreed in writing to contribute his rights in this land to a joint venture consisting of himself and several other investors. In accordance with this agreement, he took title to the land in January 1972 in the name of “Frank C. Campbell, Trustee,” and about the same time he and the joint venturers joined with additional investors in signing articles of limited partnership for an enterprise known as “Regional Center, Ltd.,” of which Campbell and six others were general partners. Evidently the principal purpose of the limited partnership was the acquisition and development of the land in question.

The purchase money was originally borrowed from a bank on a one-year note. Subsequently, Campbell and other general partners of Regional Center, Ltd. sought financing for a longer period. They approached representatives of Wintex Mortgage Company concerning a loan, and on November 4, 1972, Wintex obtained a commitment from the present defendant, American Century Mortgage Investors, to lend two million dollars to Regional Center, Ltd. at a rate of four and one-half percent above the prime interest rate established from time to time by Chase Manhattan Bank of New York. The commitment letter further required a deed of trust on the twenty-seven acres of land and a continuing guaranty of the loan by several of the general partners of Regional Center, Ltd.

When the commitment letter of November 4 was received, Wintex advised Campbell that the lender would require a corporate borrower. After consulting with Campbell, Wintex wrote a letter to American Century requesting several changes from the original commitment. Among the changes requested were that the name of the borrower be Investment Real Estate Company, Inc., that the loan be reduced to one million eight hundred thousand dollars because part of the land had been sold, and that the deed of trust cover the remaining land, consisting of approximately twenty-five acres.

These modifications in the commitment were accepted by American Century, and the loan was closed at the office of Dallas Title Company in Irving on January 19, 1973. As a part of the closing transaction, Campbell as trustee signed a warranty deed conveying the land to Investment Real Estate Company, Inc. In his capacity as president of the corporation he also signed a promissory note for one million eight hundred thousand dollars payable to American Century with interest at the rate of four and one-half percent above the prime lending rate as established by Chase Manhattan Bank of New York. The interest was payable monthly and the entire principal balance was payable at the end of two years. Campbell also signed, on behalf of the corporation, a deed of trust in favor of Harlon P. Sisk, trustee, for the benefit of American Century. Several of the general partners of Regional Center, Ltd. signed a continuing guaranty of the corporate note. This guaranty expressly limited their liability for interest to a maximum of ten percent per annum.

About the same time the loan was closed, three other documents were executed but were not disclosed to any representatives of the lender. One was a corporate resolution of Investment Real Estate Company, Inc., authorizing the corporation to take title to the land from Frank Campbell, trustee, and also authorizing Campbell as president of the corporation to execute the note and deed of trust in question. This resolution further provided that the corporation would hold the title as trustee for Regional Center, Ltd., and authorized Campbell to execute a deed conveying the land to Regional Center, Ltd. The second document not disclosed to the lender was a deed signed by Campbell as president of the corporation conveying the land to Regional Center, Ltd. in accordance with the resolution. The third was a letter to Gene Schutze, attorney for the corporation, instructing him to hold the deed in escrow and to file it for record in certain prescribed circumstances.

The evidence shows that the representatives of the borrower were careful not to disclose these three documents to any of the representatives of the lender or of the title company which insured the title of the borrowing corporation. This nondisclosure was explained at the temporary-injunction hearing by the corporation’s attorney, Mr. Schutze, who testified that if these documents had been called to the attention of the title company, the loan could not have been closed. Also the lender’s attorney, Mr. Poitevant, testified that if he had seen them at the time of the closing he would have “bounced off the ceiling.”

The present suit was not brought by the corporate borrower but by the limited partnership, Regional Center, Ltd., alleging that it was the equitable owner of the land and that the loan was usurious because defendant American Century had contracted with the corporation and with plaintiff Regional Center, Ltd. for interest at a greater rate than that allowed by Texas law. Plaintiff further alleged that because of the “contrivances, devices, and artifices” of defendant American Century, plaintiff was unable to exercise its rights in the land, make payments, or discharge encumbrances on the land. The only reason specified to support the alleged inability to discharge encumbrances is “the impossibility of determination of exact amount, if any, due thereon, much less if any amount is due by reason of the aforesaid usurious transactions.”

The order granting the temporary injunction does not specify the ground of probable right to restrain the trustee’s sale. The principal contention of defendant American Century on this appeal is that plaintiff has failed to establish a probable right of recovery because it failed to plead and prove a prima facie case establishing that defendant contracted for or received interest in an amount greater than the amount authorized by law. We agree.

Plaintiff argues that a probable right of recovery for usury is established by evidence showing: (1) that Regional Center, Ltd. has always been the equitable owner of the land; (2) that it is not a corporation; (3) that it was at all times the borrower-beneficiary-obligor of the loan; (4) that American Century directed that the loan commitment be changed to the corporation; (5) that as between the corporation and the partnership, American Century “carefully sought no evidence of dominant purpose or essential relationship, knowing there was none; ” and (6) that after the loan was made American Century “invoiced RCL, looked to the guarantors and ignored the unrelated paper signatory.” This argument raises the question of whether the record contains circumstantial evidence sufficient to support an implied finding that representatives of the lender knew that the transaction was not actually a loan to the corporation but was rather a subterfuge to conceal a'usurious loan to the partnership.

We find no evidence in the record to support such a finding. If we assume that the requirement of a corporate borrower was imposed by American Century, still, so far as this record shows, American Century may have expected a genuine corporate borrower to be substituted for the partnership. Such an expectation was apparently confirmed when American Century received a request for modification of the commitment with Investment Real Estate Company, Inc., a genuine corporation, as the borrower. The fact that the change from the partnership to the corporation as the borrower was made so as to permit a higher rate of interest does not in itself make the transaction usurious, since such a change is consistent with an intention to comply with the usury laws rather than to evade them, as this court recently concluded in Skeen v. Glenn Justice Mortgage Co., 526 S.W.2d 252 (Tex.Civ.App. — Dallas 1975, writ pending). See also Jenkins v. Moyse, 254 N.Y. 319, 172 N.E. 521, 522 (1930).

The fact that the monthly statements of interest were addressed to the partnership rather than the corporation adds nothing. The evidence shows that Campbell requested the statements to be addressed in this manner after the loan was closed. We do not see how a subsequent request to the lender to address the statements in a particular manner could have any bearing on the legality of the loan. Neither do we see how the lender’s efforts, if any, to exercise its rights under the guaranty agreement could bear on the question of whether the lender knew that the corporation was not the true borrower.

Plaintiff’s principal contention appears to be that if the representatives of the lender had used ordinary care to investigate the circumstances of the loan, they would have discovered that the loan to the corporation was a sham because the partnership was the real borrower. We do not agree that the lender’s failure to investigate can make a transaction usurious that is not so on its face. Usury is a matter of intention. Unless the loan papers show on their face an intention to charge interest at a greater rate than permitted by law, the burden is on the party pleading usury to show the existence of some agreement, device, or subterfuge to charge usury and that both parties had that purpose in contemplation. Griffin v. Stewart, 348 S.W.2d 800, 803 (Tex.Civ.App. — Amarillo 1961, no writ); Shipman v. Wright, 3 S.W.2d 519, 521 (Tex.Civ.App. — Dallas 1928, writ ref’d) and see Mays v. Pierce, 154 Tex. 489, 281 S.W.2d 79, 82 (1955). Even though the borrower intended to pay more interest than permitted by law, the transaction is not usurious unless the lender also supposed and intended it to be so. Abilene Christian College v. Wright, 1 S.W.2d 720, 723 (Tex.Civ.App.— El Paso 1927, writ ref’d). Failure of the lender to make an investigation which might have disclosed facts establishing payments in excess of legally permitted interest is not equivalent to an intention to charge usury.

Neither can we accept plaintiff’s contention that the lender’s neglect to require the usual resolution authorizing the officers of the corporation to borrow the money amounted to such a participation in the subterfuge as to render the transaction usurious. Plaintiff argues that if such a resolution had been demanded and the corporation had produced the resolution which actually authorized the loan, the lender would have discovered from the recitations and other provisions of the resolution that title to the land was held for the benefit of the partnership and that an immediate conveyance from the corporation to the partnership was authorized. This argument rests on speculation. It is just as reasonable to suppose that if the lender had demanded an authorizing resolution, the corporation would have furnished something other than the resolution disclosing the partnership’s interest in view of Mr. Sehutze’s testimony that the loan could not have been closed if this resolution and the other documents had been called to the attention of the title company.

Plaintiff’s own evidence indicates an intention by the partnership to practice deception upon the lender. Before the closing Campbell was admittedly an agent of the partnership and was holding title to the land as trustee for its benefit. He executed a warranty deed to the corporation and then signed a note and deed of trust on behalf of the corporation. These documents were solemn representations that the corporation was the true owner of the land and was actually borrowing the money. Other documents which would have revealed the partnership’s interest were deliberately concealed. Under these circumstances the partnership, whose agent participated in the transaction, is in no position to assert that the lender should have made its own investigation to determine whether the transaction was genuine. If a deceived party is penalized for failure to investigate, deception will often be rewarded. Accordingly, one who makes a representation on which another relies will not be heard to say that his own representation was not worthy of belief and should not have been accepted without investigation. Isenhower v. Bell, 365 S.W.2d 354, 357 (Tex.1963); Southern States Life Insurance Co. v. Newlon, 398 S.W.2d 622, 626 (Tex.Civ.App.—Eastland 1966, writ ref’d n. r. e.). On the same reasoning we hold that a borrower cannot assert a subterfuge of its own making to establish usury without proof that the lender participated in or had actual knowledge of the subterfuge.

Plaintiff also argues that it made a prima facie showing of usury by evidence that the rate of interest provided in the note, namely four and one-half percent above the prime rate established by the Chase Manhattan Bank, was more than ten percent per annum, and that the burden then shifted to the lender to establish that the loan came within the exception permitted for corporate borrowers by Tex.Rev.Civ. Stat.Ann. art. 1302-2.09 (Vernon Supp. 1974). Plaintiff insists that since the note provided for interest of more than ten percent, defendant, in order to bring the loan within the exception, had the burden to show that the loan was a genuine corporate transaction. No authority is cited in support of this contention, and we are unable to find any. We conclude that the case falls within the rule, announced in Griffin v. Stewart, supra, and other authorities above cited, that the burden is on the party pleading usury to establish that a transaction which appears legal on its face is in fact a subterfuge to cloak usury. Plaintiff has failed to discharge that burden. Consequently, the trial court’s order cannot be sustained on the ground that the loan was usurious.

Plaintiff also contends that the temporary injunction was properly issued because, apart from the usury question, the amount of principal and interest which it was required to pay to avoid the foreclosure was uncertain, citing such cases as Lee v. Howard Broadcasting Corp., 305 S.W.2d 629 (Tex.Civ.App.—Houston 1957, no writ) and Hiller v. Prosper Tex, Inc., 437 S.W.2d 412 (Tex.Civ.App.—Houston [1st Dist.] 1969, no writ). We have difficulty following this argument because plaintiff argues this uncertainty only in general terms and does not explain the nature or ground of the alleged uncertainty, if based on grounds other than usury. Apparently the prime rate established by the Chase Manhattan Bank was easily ascertainable. The lender sent monthly statements of the amount of interest due, and the accuracy of these figures is not challenged. Thus no uncertainty in the amount of interest payable has been shown.

Plaintiff suggests that the amount payable by the guarantors was uncertain, but does not explain why. The guarantors are not parties here, and even if they should tender the full amount guaranteed by them, such a tender would not prevent the trustee’s sale unless the full amount of principal and interest owed by the corporation were tendered. Consequently, any uncertainty in the amount owed by the guarantors would not provide grounds for restraining the trustee’s sale.

Plaintiff argues further that it was entitled to restrain the trustee’s sale until it could obtain an adjudication of its equitable title to the land. This argument is without merit because plaintiff has no standing to assert an equitable title as against the lender who relied on the legal title unless the evidence shows that the lender had actual or constructive notice of its claim. Richardson v. Levi, 67 Tex. 359, 3 S.W. 444 (1887). We have already demonstrated that this record fails to show that the lender had any such notice.

For the reasons stated, the order granting the temporary injunction is reversed and the temporary injunction, is dissolved.

      . Tex.Rev.Civ.Stat.Ann. art. 5069-1.02 (Vernon 1971) provides in part as follows:
      Except as otherwise fixed by law, the maximum rate of interest shall be ten percent per annum. A greater rate of interest than ten percent per annum unless otherwise authorized by law shall be deemed usurious.
      One of the exceptions to the ten-percent maximum is found in Tex.Rev.Civ.Stat.Ann. art, 1302-2.09 (Vernon Supp.1974) as follows:
      Notwithstanding any other provision of law, corporations, domestic or foreign, may agree to and stipulate for any rate of interest as such corporation may determine, not to exceed one and one-half percent (l‘/2%) per month, on any bond, note, debt, contract or other obligation of such corporation under which the original principal amount is Five Thousand Dollars ($5,000) or more . and in such instances, the claim or defense of usury by such corporation, its successors, guarantors, assigns or anyone on its behalf is prohibited .

      . Plaintiff suggests that the loan was usurious even to a corporate lender because “four and one-half percent over prime” could conceivably amount to more than the one and one-half percent per month permitted by article 1302-2.09. We note, however, that the parties have specifically excluded the possibility that the rate might go above the statutory maximum by the following language: “In no event, however, shall any interest payable under this Note, regardless of how said interest may be defined or computed, ever exceed the maximum rate permitted under the laws of the State of Texas.”


author: PEDEN, Justice.

text:
    Ex parte John DEAN, Relator.
    No. 16595.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 9, 1975.
    Bruce K. Bornefeld, Houston, for relator.
    No brief filed for appellee.
   PEDEN, Justice.

Relator, John Dean, brought this original habeas corpus proceeding after being held in contempt and sentenced to jail for three days and until he purged himself of contempt by paying $750, the amount the court found he had failed to pay under a child-support order, plus court costs. He alleges that the child-support order is too uncertain and unclear to be enforced by contempt. We agree.

The order in question modified the child-support provision of the original divorce decree to provide that relator “pay the sum of $200.00 per month for the support of the children, payable one-half on the 1st and 3rd Fridays of each month . . .’’At that time two of relator’s four children were under eighteen years of age. Now that only one is under eighteen, the relator says he cannot tell whether it requires him to pay $200 each month until his youngest child reaches eighteen or permits him to reduce his monthly payments to $100 now that the older of the two is eighteen. Under the record in this case and the provisions of the Texas Family Code, § 14.05, the relator has no duty to support any of his children who have reached age eighteen. He contends that he would be supporting a child over the age of eighteen if he could not reduce the $200 payment in half when the older reached age eighteen.

The court has the power to award lump sum amounts for child support without apportioning a percentage for the support of any one child when there are two or more minor children. Whatley v. Whatley, 493 S.W.2d 299 (Tex.Civ.App.1973, no writ). The court also has the power to order relator to pay $200 per month until the younger of two minor children reaches age eighteen. Garza v. Fleming, 323 S.W.2d 152 (Tex.Civ.App.1959, writ ref. n. r. e.).

It is an accepted rule of law that for a person to be held in contempt for disobeying a court decree, the decree must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him. Ex parte Slavin, 412 S.W.2d 43 (Tex.1967). The support order in that case was held to be equivocal.

“It orders, on the one hand, that the support is for ‘the three minor children,’ but, on the other, it limits the support payments by the further provision, ‘until said children attain the age of eighteen years.’ It is uncertain whether this means that relator must support his oldest child after reaching eighteen, or whether the support is to continue unreduced for the other children, or whether the support payments should be proportionately reduced.”

In our case John Dean was ordered to pay $200 per month for support of the children, and § 14.05 of the Texas Family Code limits the relator’s obligation to age eighteen. This order is subject to the three possible interpretations we have quoted from Ex parte Slavin.

The relator is discharged from custody.


text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. CHRISMAN CONSTRUCTION COMPANY, INC., Appellee.
    No. 16535.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 9, 1975.
    Rehearing Denied Nov. 6, 1975.

      James M. Shatto, Herb H. Ritchie, Houston, for appellant.
    Adams & Adams, Joe R. Blackburn, Houston, for appellee.
   PEDEN, Justice.

Chrisman Construction Company, Inc., sued Southwestern Bell Telephone Company for its expenses in providing additional materials and labor allegedly required by Bell on a construction job. Bell appeals from the judgment entered on the jury’s verdict. We reverse and render because Chrisman did not file this cause within two years after it accrued.

By a written contract Chrisman agreed to “excavate trench, place conduit, excavate for manholes, construct manholes, place manhole frames and covers, and place galvanized iron pipe” along Interstate Highway 45 near Spring, Texas. The contract price was paid. Chrisman alleged in its petition that after it had commenced work on the project, inspectors for Bell required Chrisman 1) to use 549 tons of stabilized sand as backfill material instead of dirt specified in the plans and specifications made part of the contract and 2) to increase the thickness of the manhole walls in proportion to their depth. Bell points out that item 7 of the contract provides that the work will be performed “in accordance with the plats, plans, specifications, drawings, and instructions under the Telephone Company’s Estimate or other work order number stated on the face of this contract, and in accordance with the current Bell System Practices applicable to the work.”

Judgment was entered for the plaintiff-appellee based on these jury findings:

1. While the construction was in progress, under the terms of the written contract between Plaintiff and Defendant, authorized representatives, agents or servants of Southwestern Bell Telephone Company ordered modifications or changes in the amount or specifications of the work to be done under said contract.
2. Plaintiff complied with such order and made such changes and modifications.
3. The extra work and material furnished by Plaintiff did not constitute minor changes not involving extra cost.
4. Plaintiff had completed all the work in question, including all extra labor and materials, on or about June 3, 1970.
5. Defendant had accepted all the work in question including all extra labor and materials on or about September 2, 1970.
6. The amount of money, which, if paid now in cash, would compensate the Plaintiff for labor, materials and time expended for the completion of additional work or alterations and specifications done under said contract is $28,894.

The contract contained this general provision:

“1. Changes in the work:
The Telephone Company may make changes in the work by altering, adding to or deducting from, the work. If the contract sets forth a unit or quantitative price, the contract price shall be adjusted for such change on the basis of such unit or quantitative price. No change in the contract price shall be made for minor changes not involving extra cost. All other adjustments in the contract price by reason of any change shall be agreed to by the parties.”

Bell’s first point of error is that the trial court erred in failing to render judgment for Bell because Chrisman’s cause of action was barred by Art. 5526, Vernon’s Texas Civil Statutes, the two-year statute of limitations, since it was a suit for a debt not evidenced by a written contract. It is un-controverted that Chrisman filed this suit more than two years after its cause of action accrued. In deciding this point we consider whether the changes found by the jury amounted to extra work or additional work. We differentiated between these terms in City of Houston v. L. J. Fuller, Inc., 311 S.W.2d 285 (Tex.Civ.App.1958, no writ):

“Extra work is work arising outside of and independent of the contract; something not required in its performance. Additional work is that required in the performance of the contract and without which it could not be carried out.”

There is no evidence in our case that the changes were required in the performance of the contract or that it could not be carried out without them. The changes amounted to extra work.

It was held in Collins v. Hall, 161 S.W.2d 311 (Tex.Civ.App.1942, writ ref. w. o. m.) that alterations and changes made by the owner with the consent of the contractor did not constitute an abandonment of the construction contract but merely amount to substitutions in lieu of the written provisions of the contract. The contractor’s recovery for the changes is not predicated on the terms of the written contract but on extra work done and materials furnished beyond the requirements of the contract. That recovery is on a quantum meruit basis.

Recovery on an express contract and on quantum meruit are inconsistent. Woodard v. Southwest States, Inc., 384 S.W.2d 674 (Tex.1964). Since Chrisman’s claim is for the extra work and is not based on the written contract, the two-year statute of limitations bars recovery. City of Houston v. Finn, 161 S.W.2d 776 (Tex.1942).

We conclude that the provision allowing Bell to make changes in the work does not bring the changes ordered by Bell within the written contract. The contract did not set forth a unit or quantitative price, and the parties did not agree to an adjustment of the contract price by reason of the changes. The evidence shows that Bell made no effort to agree.

We do not reach the appellant’s other points of error.

Reversed and rendered.


author: ROBINSON, Justice.

text:
    COMMERCIAL CREDIT CORPORATION, Appellant, v. Walter S. NICHOLS, Appellee.
    No. 8542.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 14, 1975.

      Folley, Snodgrass & Calhoun, O. M. Calhoun, Amarillo, for appellant.
    Lovell, Lyle & Renfer, R. A. Renfer, Jr., Dumas, for appellee.
   ROBINSON, Justice.

The trial court held that the defense of accord and satisfaction, available to buyer against the seller of an automobile, was also available against seller’s assignee who did not give buyer notice of assignment as required by Article 5069-7.08, Vernon’s Ann. Civ.St. (1971). Affirmed.

Walter Nichols purchased two vehicles from Dale McLaughlin, dba Dale’s Motor Company. Installment sales contracts for each, payable to the office of Commercial Credit Corporation in Amarillo, Potter County, Texas, and granting the seller, Dale’s Motor Company, a security interest in the vehicles covered, were executed at the time of purchase on a form furnished to McLaughlin by Commercial Credit Corporation which floorplanned McLaughlin’s inventory. The contracts, by their printed terms, were assigned to Commercial upon execution by McLaughlin. In the middle of the print on the back of the contract is the following language:

This Security Agreement may be assigned by Seller, and when assigned, all rights of Seller shall vest in its assignee. All payments or other monies then owing hereunder shall be paid by Purchaser to the assignee without recoupment, set-off or counterclaim, either in law or in equity, and any payments otherwise made shall be at the risk of Purchaser if not received by the assignee.

Nichols paid one installment on each contract and redelivered both vehicles to Dale’s Motor Company pursuant to an agreement between Nichols and McLaughlin that each should be resold by Dale’s Motor Company in satisfaction of the installment contracts which Nichols and McLaughlin had executed. McLaughlin resold the vehicles and installment purchase contracts, signed by the new purchasers, were also assigned to Commercial Credit Corporation. Upon the second sale, McLaughlin tendered to Commercial a check in payment of Nichol’s installment contract for one of the vehicles. This check was returned marked insufficient funds. Commercial brought suit against Nichols for the amounts due on both of Nichols’ contracts. At the trial, Nichols testified that he did not receive the notification of assignment to Commercial provided for in Art. 5069-7.08(4). There was no evidence that Commercial sent such notification. The trial court sitting without a jury found that Nichols did not receive any notification of any assignment of the contracts to Commercial and decreed judgment for defendant, Nichols.

Plaintiff Commercial appeals, contending that it is not precluded from recovery on the assigned contracts by Nichols’ defense of accord and satisfaction because the defense arose out of a subsequent and collateral transaction to which Commercial was not a party, because defendant-buyer waived by the quoted language of the contracts the right to assert the defense against Commercial, and because the language of the form contracts itself gave buyer notice of the assignments.

Between Nichols and McLaughlin there was an accord and satisfaction which would have been available to Nichols in a suit brought on the contracts by McLaughlin.

Article 5069-7.08, a part of the chapter of our statutes regulating motor vehicle installment sales, provides as follows:

Art. 5069-7.08. Assignment and negotiation.
sfc ⅝ ⅜ ⅝ ⅝ ⅛:
(3) Unless the buyer has notice of the assignment or negotiation of his retail installment contract, or any outstanding balance thereunder payment therefor made by the buyer to the holder last known to him shall be binding upon all subsequent holders;
(4) No right of action or defense of a buyer arising out of a retail installment sale which would be cut off by negotiation, shall be cut off by negotiation of the contract to any third party unless such holder acquires the contract in good faith and for value and gives notice of the negotiation to the buyer as provided in this Article, and within thirty days of the mailing of such notice receives no written notice of any facts giving rise to any claim or defense of the buyer. A notice of negotiation shall be in writing addressed to the buyer at the address shown on the contract and shall identify the contract, state the names of the seller and buyer; describe the motor vehicle; state the time balance and the number and amounts of the installments. The notice of negotiation shall contain the following warning to the buyer in ten-point bold face type:
IP YOU HAVE ANY COMPLAINT OR OBJECTION REGARDING THE GOODS OR SERVICES COVERED BY THE CONTRACT IDENTIFIED IN THIS NOTICE, OR ANY CLAIM OR DEFENSE RELATING TO SUCH CONTRACT, YOU MUST NOTIFY US WITHIN 30 DAYS FROM THE DATE THIS NOTICE WAS MAILED.

Article 5069-7.10 of the same chapter provides that no agreement of the buyer before, or at the time of the making of a retail installment agreement shall constitute a valid waiver of any of the provisions of the chapter.

In Commercial Credit Corporation v. Williams, 474 S.W.2d 751 (Tex.Civ.App. — East-land 1971, no writ), on facts similar to these and also involving a transaction between Commercial and McLaughlin, the court held that the defense of accord and satisfaction, which would have been available against assignor, was likewise good against his as-signee who failed to give the statutory notice of assignment.

We conclude that the language of assignment in the printed installment contracts in question does not meet the notice requirements of Art. 5069-7.08; that any waiver of buyer’s rights under Section 7.08 is invalid by the express provisions of Section 7.10; and that, in the absence of the required notice, the defense of accord and satisfaction available to Nichols against McLaughlin was available against McLaughlin’s as-signee Commercial.

The judgment of the trial court is affirmed.


author: KLINGEMAN, Justice.

text:
    J. O. BURK, Jr., et al., Appellants, v. Rumalda MATA, Individually and as Independent Executrix of the Estate of Victoria Clark, Deceased, Appellee.
    No. 15410.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 22, 1975.
    Rehearing Denied Nov. 19, 1975.

      Frank D. Masters, San Antonio, John L. Hill, Atty. Gen., David M. Kendall, Richard E. Green, Asst. Attys. Gen., Austin, for appellants.
    Kenneth Oden, Perkins, Davis, Oden & Warburton, Alice, for appellee.
   KLINGEMAN, Justice.

This is a will contest. The probate court of Jim Wells County, on June 14, 1972, admitted to probate a will of Victoria Clark, dated November 8, 1971, in which will ap-pellee, Rumalda Mata, was the sole devisee and the independent executrix of such will. Appellants thereafter filed a contest to such probated will in the district court of Jim Wells County, asserting lack of testamentary capacity and undue influence as grounds for such contest. One of the contestants, Markel Heath, also filed an application to probate a prior will of Victoria Clark dated August 29, 1962, and a codicil thereto dated April 2, 1963; and the other contestants, J. 0. Burk, Jr., the Salvation Army, and the Attorney General of Texas, joined in the application to probate this will. Trial was to the court without a jury. The trial court denied such contest and held that the former probate should not be set aside but should be confirmed; and the application to probate the will dated August 29, 1962, and codicil thereto was also denied. The trial court made extensive findings of fact and conclusions of law.

Appellants assert on this appeal that: (1) the trial court erred in holding that the decedent had testamentary capacity because the only credible evidence establishes that the testatrix did not have testamentary capacity; (2) the findings of fact and conclusions of law pertaining to testamentary capacity are (a) supported by no evidence, (b) supported by factually insufficient evidence; and,(c) against the great weight and preponderance of the evidence; (3) appellee, in an admission against interest, recognized and admitted that Victoria Clark did not have testamentary capacity at the time she executed the will; (4) the trial court erred in not admitting into evidence (a) the cause of death shown on the death certificate, (b) certain testimony of Mrs. C. E. Guinn contained in a deposition; (5) the trial court erred in admitting into evidence the testimony of Mrs. Flora Mae Pollard regarding her conversations with, observations of, and transactions with Victoria Clark because such testimony was in violation of the Texas Dead Man’s Statute.

Victoria Clark died in Jim Wells County, Texas, on May 16, 1972. At the time of her death, at the time of executing the will, and for a period of time before the execution of such will, Victoria Clark was a patient at Premont Nursing Home. The will here under attack is a typewritten will dated November 8, 1971, signed by Victoria Clark and witnessed by Mrs. D. L. Pollard (Flora Mae) and Mrs. C. E. Guinn. It contains a self-proof certificate, signed and sworn to by the testatrix and the two attesting witnesses, before Hector Barrera, a notary public in and for Jim Wells County, Texas. At the time of executing this will, Mrs. Clark was 96 years of age. Appellee, Ru-malda Mata, is the sole devisee in such will and is the independent executrix appointed in such will.

The will offered for probate by the contestants is dated August 29, 1962, with a codicil thereto dated April 2, 1963. Markel Heath, Esq., was the independent executor appointed under such will. In such will, Victoria Clark made specific bequests to various named persons, including Rumalda Mata. Such will further contains a devise of her undivided one-half interest in a tract of 492.3 acres in Bexar County, Texas, to contestant J. 0. Burk, Jr., recited to be her excellent friend and careful tenant. Her nephew, Walter A. Klein, is devised all of the oil, gas, and other minerals in two lots in the town site of La Gloria in Jim Wells County. All the test and residue of her property is devised to the Salvation Army. This will contains a provision that she deliberately does not make any bequests to any of her kin except for a nephew, Walter A. Klein. Walter A. Klein is not a contestant to the will dated November 8, 1971, and neither the appellee, Rumalda Mata, or any of the contestants are kin or related to Victoria Clark.

We first consider appellants’ points of error asserting that the testatrix lacked testamentary capacity at the time of executing the will. In such points of error, appellants contend that the findings and judgment of the trial pertaining to testamentary capacity of the testatrix are supported by no evidence, factually insufficient evidence, and are against the great weight and preponderance of the evidence. We have carefully examined and considered all of the evidence.

Since this is a suit to annul the probate of a will already probated, the burden was on contestants to establish incapacity by a preponderance of the evidence. Lee v. Lee, 424 S.W.2d 609 (Tex.1968); Chambers v. Winn, 137 Tex. 444, 154 S.W.2d 454 (1941); Duke v. Falk, 463 S.W.2d 245 (Tex.Civ.App. — Austin 1971, no writ).

A person is generally deemed to have sufficient capacity to make a will, if, at the time of executing the will, he is aware of the objects of his bounty, if he understands the disposition made and the consequences of executing the instrument, and if he knows the nature and extent of his property. 61 Tex.Jur.2d Wills Section 20 (1964); Oliver v. Williams, 381 S.W.2d 703 (Tex.Civ.App.—Corpus Christi 1964, no writ); McCannon v. McCannon, 2 S.W.2d 942, 944 (Tex.Civ.App.—Galveston 1927, writ dism’d). Our Supreme Court in Carr v. Radkey, 393 S.W.2d 806, 813-14 (Tex.1965), stated the question as follows: “The particular question here was whether Miss Hewlett, when she wrote her will, had sufficient ability to understand the business in which she was engaged, the effect of her acts in making the will, realized what she was doing, and knew the property she owned.”

The proper inquiry in a will contest on the grounds of testamentary incapacity is the condition of the testator’s mind on the day the will was executed. Lee v. Lee, supra.

The testimony with regard to testamentary capacity is sharply conflicting and contrasting. Nine witnesses testified on behalf of the proponent, including the two attesting witnesses and the notary who took the self-proof certificate. Five witnesses testified on behalf of contestants, including the attending physician. No useful purpose would be served by a recitation of all the lengthy evidence, pro and con, upon the issue, but the most pertinent portions therein are summarized in an appendix attached hereto.

Appellants’ basic contention is that there is no credible evidence to support the trial court’s findings as to testamentary capacity, and argues in effect that the testimony of proponent’s witnesses is unbelievable. As a general rule, the trier of the facts is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962); Romer v. Gruver State Bank, 474 S.W.2d 578 (Tex.Civ.App.— Eastland 1971, no writ). Appellant also argues that the only medical testimony establishes that Mrs. Clark did not have testamentary capacity, and that this should be controlling. This same contention was made in In Re Finkelstein’s Estate, 61 S.W.2d 590 (Tex.Civ.App.—Amarillo 1933, writ dism’d), where four medical witnesses testified that the testator lacked testamentary capacity. Several lay witnesses testified to the contrary. The Court said: “ ‘But a physician’s opinion regarding mental capacity generally, or the mental capacity necessary to make a will, is, in the eye of the law, no better than that of any other person.’ ” In Schmidt v. Schmidt, 403 S.W.2d 531 (Tex.Civ.App.—Waco 1966, no writ), the testator was 94 years old, sick, and in bed when he executed the will. The two attesting witnesses testified that the will was signed on February 10, 1964, between 12:00 and 3:00 in the afternoon, and that the testator had testamentary capacity. A medical doctor testified that he made a house call on the testator on such day in the afternoon between 12:00 and 2:30; that the testator was sick and unconscious at such time and was not able to recognize his relatives or know the nature and extent of his property; that he did not have sufficient memory to collect in his mind the necessary elements to make a will or form a reasonable judgment. The jury found that he had testamentary capacity at the time of making the will, and the appellate court upheld this finding.

Appellant also implies that because of Mrs. Clark’s advanced age she could not have testamentary capacity. The fact that a testator is of an advanced age alone is not sufficient to deny probate of a will. McCannon v. McCannon, supra. See Schmidt v. Schmidt, supra; Prince v. Johnston, 352 S.W.2d 864 (Tex.Civ.App. — San Antonio 1961, writ dism’d); Salinas v. Garcia, 135 S.W. 588 (Tex.Civ.App.1911, writ ref’d).

The testimony as to testamentary capacity is sharply conflicting and disputed, and, in our opinion, under the record before us, the testimony is sufficient to support either an affirmative or negative finding upon the issue of mental capacity. However, the trier of the facts heard the witnesses and had the opportunity to observe their appearance and demeanor; to weigh their testimony, and to evaluate the respective qualifications of all the witnesses. There is an abundance of evidence that testator had testamentary capacity, and also an abundance that she did not. The trial court saw fit to accept the former and reject the latter. This Court cannot substitute its opinion as to the credibility of the witness and the weight to be given the testimony for that of the trial judge. The rule is well established in this state that an appellate court will not disturb findings of a jury on conflicting evidence where there is some evidence to support their verdict, unless the verdict is so overwhelmingly against it as to shock the conscience or show clearly that the conclusion reached was wrong, or was the result of some passion, prejudice, or improper motive. Highsmith v. Tyler State Bank & Trust Company, 194 S.W.2d 142 (Tex.Civ.App. — Texarkana 1946, writ ref’d). The trial court’s findings and judgment pertaining to testamentary capacity of Victoria Clark are not against the great weight and preponderance of the evidence and is sufficiently supported by the evidence.

Appellants also contend that the finding of testamentary capacity should not stand because appellee, Rumalda Mata, in an admission against interest, recognized and admitted that Victoria Clark did not have testamentary capacity at the time she executed the will. This supposed admission is based on testimony by one of contestants’ witnesses, Christine Clarke, that Rumalda Mata told her “all we want you to come in and say, you and Mr. Clarke, is that Mrs. Clark was of sound mind and that she had all her factions (sic) to the very last”; that although Mrs. Mata was present in the courtroom when such testimony was made, she never took the stand and denied the testimony. We regard appellants’ contention as wholly without merit. The statement is clearly not an admission that Mrs. Clark did not have testamentary capacity and, if anything, it is consistent with appel-lee’s contention that Mrs. Clark did have testamentary capacity. At most, it is an effort by appellee to locate witnesses who were favorable to her contention. We do not regard it as an admission in any respect nor do we regard it as relevant on the matter of testamentary capacity.

Appellants also contend that the court erred in not admitting into evidence the cause of death shown on the death certificate of Victoria Clark. The death certificate in question is signed by Dr. H. R. Buck and the cause of death is listed to be “generalized arteriosclerosis.” Appellee asserts that the exclusion was proper because (a) the certificate did not comply with Article 4477, Tex.Rev.Civ.Stat.Ann. (1966), or other applicable statutes relating thereto, (b) the statement was hearsay. They further assert that such point is not preserved because there is no objection to such exclusion. Even if we assume the exclusion was improper, it was not harmful error. Rule 434, Tex.R.Civ.P. (1967). Dr. Buck was one of contestants’ witnesses and testified in detail about Mrs. Clark’s physical and mental condition. He testified that she had arteriosclerosis and had advanced hardening of the arteries and testified in considerable detail as to the effect of arteriosclerosis. No reversible error is shown. See, generally, 4 Tex.Jur.2d App. & Err. Section 854 (1974); Duncan v. Smith, 393 S.W.2d 798 (Tex.1965); Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210 (1958); Missouri Pacific Ry. Co. v. Harkins, 346 S.W.2d 910 (Tex.Civ.App. — Eastland 1961, writ ref’d n. r. e.); Rule 434, supra.

Appellants also complain that the trial court erred in admitting into evidence the testimony of Flora Mae Pollard regarding her conversations with, observations of, and transactions with Victoria Clark, because said testimony was in violation of the Texas Dead Man’s Statute. Mrs. Pollard was not a party to the suit here involved, she was not an heir or a legal representative of the decedent, or any other parties involved. The sole basis for appellant’s contention is that since Mrs. Clark was a patient in the nursing home owned by Mrs. Pollard, that Mrs. Pollard might have a possible claim against the estate of Mrs. Clark, and that she was an interested party. There is nothing whatsoever in the record to show that she had any such claim. Assuming she had a claim, although there is no basis for such assumption, Mrs. Pollard’s claim would in no way be affected whether or not the will here involved was probated. In Morris v. Ratliff, 291 S.W.2d 418 (Tex.Civ.App. — Dallas 1956, writ ref’d n. r. e.), the contention was made that one of the medical bill was for appellee to be success-the Dead Man’s Statute (Article 3716) because he was an interested party in that he admitted that his sole chance to be paid his medical bill was for appellee to be succfessful in cancelling appellant’s deed. The court said: “In our opinion the witness was not disqualified under the statute. It has been held that an attorney whose fee was contingent upon the outcome of a lawsuit is not disqualified as an interested party. . Certainly a doctor whose bill is not contingent, but whose chance to collect might depend on, or at least might become better with the success of one party in litigation, is not an interested party in the statutory sense.” See also Logan v. Thomason, 199 S.W.2d 210 (Tex.Civ.App. — Fort Worth 1946), rev’d on other grounds, 146 Tex. 37, 202 S.W.2d 212 (Tex.1947); Davidson v. Gray, 97 S.W.2d 488 (Tex.Civ.App.— Eastland 1936, no writ). Mrs. Pollard was not a named party to the suit and did not have any legal interest in the suit. She was not a party within the purview of the Dead Man’s Statute, and her testimony was not prohibited under the Dead Man’s Statute.

Appellants also complain that the trial court erred in excluding portions of the testimony of Mrs. C. E. Guinn. The gist of such excluded testimony is that, at the time she witnessed the will, she knew very little about geriatric patients, but that since such time, she had learned more about geriatric patients and had now had more experience; that based upon what she now knows, she would have some qualifications about Mrs. Clark’s testamentary capacity; that based on what she now knows, she would not have witnessed a will without asking more questions; that she would ask for them to find a lawyer, and would ask the opinion of a doctor, and she would have it in writing before she did anything; that, in fact, she would not sign as a witness for any patient in any nursing home ever again. She further stated that one of the symptoms of geriatric patients is a senility and a forgetfulness; and that, based upon what she has since learned through training, internship and reflection, while she would not say that Mrs. Clark was incompetent, she would say that she was senile. On further questioning, she stated that she thought Mrs. Clark knew what she was doing at such time.

Appellee contends that her testimony was properly excluded because the matters sought to be testified by her were deductions, reasonings and conclusions based on other facts, experiences and training received after the event in question occurred. Assuming arguendo that such testimony was improperly excluded, such exclusion was not reversible error. It is to be remembered that Mrs. Guinn testified in considerable detail about the execution of the will and Mrs. Clark’s testamentary capacity at the time of the execution of the will. The testimony admitted is summarized in the attached appendix. In such admitted testimony, she testified that Mrs. Clark was of sound and disposing mind; that it never occurred to her that Mrs. Clark was of unsound mind; that, at such time, Mrs. Clark was perfectly rational; and that there was no question in her mind that Mrs. Clark knew what she was doing and was doing what she intended to do. The trier of the facts, looking at all the testimony of Mrs. Guinn, admitted and excluded, could conclude that Mrs. Clark had testamentary capacity at the time of executing such will. Moreover, over and above any testimony of Mrs. Guinn, there was sufficient other testimony before the court to support an affirmative finding as to testamentary capacity, including the only other two persons who were present at the time of executing the will, which testimony was corroborated by various nurses who were working at the Premont Nursing Home at and before the execution of the will and who observed Mrs. Clark frequently.

All of appellant’s points of error have been considered and all are overruled. The judgment of the trial court is affirmed.

APPENDIX

WITNESSES FOR CONTESTANTS

Dr. H. R. Buck testified that Victoria Clark first became a patient in about 1962. He was a witness to the will of August, 1962, and he testified in some detail about such will; testifying that Mrs. Clark definitely was in possession of all her mental faculties at that time, and that, considering her age (she was approximately 87 at that time), she was remarkably agile. During the next nine years, he saw her approximately four times. He testified that she gradually became more feeble, and that in June, 1971, when she was brought to his office she was in a condition of such debility that it was obvious that she was going to have to be taken care of, and that he sent her to a hospital in Falfurias, where she stayed about three weeks. He then sent her to Premont Nursing Home; his testimony being that she did not want to go but he ordered her admitted; that she was incontinent of urine and bowels and had to be helped to feed herself and to keep clean; that her eyesight was poor and her hearing poor, and that she had a big sore on her face and a tumor of the lung. He testified that she had arteriosclerosis, and had advanced hardening of the arteries; that Victoria Clark was senile at the time she was sent to the nursing home. He testified that in his opinion, Victoria Clark, during the time she was in the nursing home, was not capable of ordinary business judgments or of making rational decisions, that he did not believe she had lucid moments sufficient to making rational decisions; that in his opinion, on November 8,1971, Victoria Clark did not know the nature and extent of her property, did not know who her relatives were, and did not know the effect of signing a will.

On cross-examination, he stated that Mrs. Clark was not ambulatory at the time she was brought into his office in June of 1971 and was never ambulatory thereafter; that he visited the rest home on an average of about twice a month; that he does not think, at any time Mrs. Clark was in the nursing home, she had the ability to know she was in a nursing home; that she did not know the members of her family, but that she knew Mrs. Mata; that she had lost her sense of esthetic discrimination; that he would not think Mrs. Clark would have any desire to keep clean or to have her hair taken care of; that she would not have sufficient emotional functions to grieve or to weep in grieving. He testified that while Mrs. Clark was in the nursing home, she was often drawn up into a fetal position; that he doubted whether Mrs. Clark, while in the nursing home, would be able to use the buzzer signal or cord to call a nurse and would not be knowledgable about the foods that were served to her.

Mrs. Phyllis Fine was the administrator of the nursing home at the time Victoria Clark was admitted to it. She testified that she admitted Mrs. Clark to such nursing home in July of 1971, and Mrs. Clark was ambulatory at that time, and on admission walked into the nursing home and she did not become bedridden until sometime later. She testified that she obtained all the necessary admittance information from Mrs. Clark, including her age, place of residence, nearest of kin, name of her deceased husband, name of her father; and that Mrs. Clark gave the name of Walter Klein, a nephew, as the person to be notified in case of emergency. She testified that upon admission, Mrs. Clark was very coherent and gave all the necessary information that she needed. She testified that, at the time of her admission, Mrs. Clark was in full possession of her faculties. She testified that, after Mrs. Clark was admitted to the hospital, she did not have too much opportunity to visit in her room, but saw her on occasion; that she considered Mrs. Clark as senile; that most of their patients are senile. She stated she was very neat and wanted to stay clean and that she had a mind of her own. She testified that, up until shortly before her death, Mrs. Clark would use the bedpan herself. She testified that Mrs. Mata visited Mrs. Clark nearly every day and would help feed Mrs. Clark and was faithful to her.

Miss Cor in Almaraz, an LVN, worked for the Premont Nursing Home from sometime in 1968 to September, 1972; she knew Mrs. Clark and had frequent opportunity to observe her. She stated that Mrs. Clark was incontinent of both bowels and bladder; that she had a bad sore on her face, could not see very well, and was hard of hearing; that Mrs. Clark would sometimes pick at things which were not there and constantly folded napkins; that she frequently called out “Good Lord, let me die”; that she was not able to carry on a normal conversation, but that she knew who she was and where she was. She stated that she doubted that Mrs. Clark, while in the nursing home, would have been able to use the signal cord or buzzer to call the nurse; that she never turned herself under her own power. She testified that on occasion Mrs. Clark would ask if her nephew called. She also testified that Mrs. Clark’s position in bed was sort of like an infant’s position and was a fetal position.

Mrs. Christine Clarke, who is no relation to Victoria Clark, operated an apartment or courts once known as Isham Courts, which was close to the nursing home. Mrs. Victoria Clark had a room in such courts prior to her admittance to the Premont Nursing Home and had lived there for a number of years, and even continued to pay rent on such apartment while she was in the nursing home. Mrs. Christine Clarke purchased such courts in about the year 1967, and Mrs. Victoria Clark was residing there at such time. She testified that at the time she was operating such courts, Mrs. Victoria Clark had various physical ills, but that she had a very strong will and carried on an intelligent conversation; that she listened to the radio regularly; was a baseball fan, liked to listen to the baseball games, and knew the names of the teams and players; that Mrs. Clark paid a monthly rent, by check which was signed by her, and that even after Mrs. Clark went to the nursing home, she continued to receive such checks which she accepted, endorsed and continued to cash. She testified that after Mrs. Clark went to the Premont Nursing Home, she visited her three times, but was uncertain as to the dates; that she believed that the last visit was in February or March of 1972; that on the first and second visits when she went to the nursing home, she noticed a change in her; that she did not talk about baseball anymore, was bedridden all the time and did not have very much to say; that her visits with Mrs. Clark at the nursing home were very short, usually about thirty minutes.

She testified that, after Rumalda Mata’s son was killed in an accident, she went to visit Mrs. Clark in the nursing home, and Mrs. Clark was very upset about the accident. She stated that Mrs. Clark was very opposed to religion and politics and on one occasion said she wanted to be cremated. On cross-examination, she testified that Mrs. Clark was very opposed to nursing homes; that Mrs. Clark was an independent type of woman and knew what she wanted; that she continued to drive an automobile until about 1970 (in 1970, she was 95 years old) and took excellent care of the automobile; that her conversations were intelligent. She testified that on one of her three visits to the nursing home, Mrs. Clark was grieving the death of Mrs. Mata’s son; that on her visits to Mrs. Clark, she was always on her back in a normal position and on occasion Mrs. Clark would turn herself.

The only other witness for contestant was Mr. W. V. Isham, Jr. He testified that he knew Victoria Clark during her lifetime, first meeting her about 1960; that she lived at Isham Courts in Premont, which were owned and operated by his father until his death, and after his death, by himself. He was a witness to the 1962 will of Mrs. Clark and most of his testimony is confined to proving up such will. He testified that Mrs. Clark had testamentary capacity at that time. He further testified that in 1967, when he was operating Isham Courts, Mrs. Clark’s condition was substantially unchanged from that of 1962, but that he never visited her in the nursing home.

WITNESSES FOR PROPONENTS

Mrs. D. L. Pollard (Flora Mae) was one of the attesting witnesses to the will of Victoria Clark, dated November 8, 1971. She is the owner and operator of the Premont Nursing Home and was such owner and operator of such nursing home from the time Mrs. Clark was admitted into such nursing home in July of 1971, until after her death. She testified that she was an LVN and on occasion acted as administrator of such nursing home. She had known Mrs. Clark since 1960. She stated that Mrs. Clark always liked Mrs. Rumalda Mata, and that Mrs. Mata would do things for Mrs. Clark and was always very attentive to her. Mrs. Pollard testified that at the time Mrs. Clark was admitted to the nursing home, she was placed in a room with a Mrs. West, who was the mother of Mrs. G. E. Guinn, the other attesting witness to the will; that while Mrs. Clark was in the nursing home, she looked in and visited with her on many occasions; that she frequently talked to her and Mrs. Clark would ask questions which were coherent.

She stated that Mrs. Clark was very sick in the early part of November, 1971, about November 2nd or 3rd, and had severe respiratory problems; that on one of such nights Mrs. Clark told her, “This is my deathbed wish — in case I don’t live through the night, will you see that Rumalda Mata gets everything that is mine?” She testified that the next day, Mrs. Clark asked her to call Hector Barrera and, after Mrs. Clark had asked her a second time, she called Mr. Barrera and told him that Mrs. Clark wanted him to come to the nursing home. She testified in some detail with regard to the execution of the will, and in connection therewith, testified that Mr. Barrera, Mrs. Guinn, and herself were present; that Mr. Barrera read the will in its entirety to them, speaking loudly and he then asked Mrs. Clark if that was the way she wanted it, and Mrs. Clark said it was. Mrs. Clark then signed the will and then she and Mrs. Guinn signed it as witnesses. She testified that, in her opinion, at such time, Mrs. Clark had the ability to understand the will and was of sound mind. She stated after the will was signed and witnessed, Mrs. Clark thanked Mrs. Guinn and herself for coming in to witness the will. She testified that Mrs. Clark was strong minded and nobody could influence her; that one time she had mentioned that she had a tract of land in Bexar County, which was leased by Mr. Burk; and that she knew her nephew, Mr. Klein. With regard to her physical condition, Mrs. Pollard testified that Mrs. Clark was able to call for help from the nurses by using the signal light buzzer cord on her bed and she did so on numerous occasions; that on such occasions, she would tell whoever answered the buzzer what she wanted; that she had her likes and dislikes and would say what nurses she did not like; that she could get on the bedpan herself; that she liked to keep clean; that she could sit up on the side of her bed up until a short time before she died; that she liked to sit in the chair to eat on occasion and did so.

Mrs. Priscella Coots, an LVN, testified that she knew Mrs. Clark for more than 20 years and had many occasions to visit her; that she frequently visited her at Isham Courts and had occasion to see her in Pre-mont Nursing Home in July of 1971; that Mrs. Clark recognized her, and she and her husband talked with Mrs. Clark; that, in her books, Mrs. Clark was competent, and that she knew what she was talking about; that Mrs. Clark and Rumalda Mata were friends over a long period of time and Mrs. Clark frequently spoke of her; that she had heard Mrs. Clark talk about a farm she had in Bexar County which she called Rocky Mountain Farm and that she said that the property was leased. She also testified that on her visit to Mrs. Clark at the nursing home, Mrs. Clark could hear them perfectly when they talked normally to her, that Mrs. Clark was just as spicy as ever and seemed to be the same Victoria Clark she knew all the years.

Mrs. G. E. Guinn was one of the witnesses to the will. She testified that she knew Mrs. Clark only after Mrs. Clark became a patient at Premont Nursing Home and that Mrs. Clark was in the same room with her mother, Mrs. West; that she visited her mother every day and would see Mrs. Clark at such time and talked to her every day; that Mrs. Clark was sick and bedridden, was hard of hearing, and could not see well, but that she was a very independent old lady; that she was able to communicate with Mrs. Clark until about the last six weeks before she died; that Mrs. Clark would talk to her as long as she could, and it was rational speaking; that she was very impressed by Mrs. Clark’s conversation and was surprised at her intelligence; that Mrs. Clark was a very fastidious person and concerned about keeping herself clean; that she was very independent. She stated that Rumalda Mata would visit frequently and would help feed her; that Mrs. Mata was very faithful to Mrs. Clark and Mrs. Clark told her that she appreciated Rumalda.

Mrs. Guinn testified in some detail as to the execution of the will. She said that she was working in the office at the nursing home when Mrs. Pollard came in and asked her if she would witness Mrs. Clark’s will; that she went to Mrs. Clark’s room and Mrs. Pollard was the other witness. Mr. Barrera was in the room and said that he had the will Mrs. Clark had requested; that Mrs. Clark had requested that it was her desire to have a will drawn up leaving everything to Rumalda; that Mr. Barrera then read the will to Mrs. Clark in the presence of all of them; that Mrs. Clark was sitting up and there was a bedside table on the bed which was usually put on the bed to eat; Mr. Barrera was looking directly at Mrs. Clark when he read the will and was probably two or three feet away; when Mr. Barrera finished reading the will, he asked Mrs. Clark if this was her desire and she said that it was; that Mrs. Clark signed the will at the little table and then she and Mrs. Pollard signed it; and that the self-proof certificate was signed before Mr. Barrera, the notary. When asked whether it was her testimony that at that time and circumstances she thought Mrs. Clark was of sound & disposing mind, she testified “Well, yes.” She also testified that it never occurred to her that Mrs. Clark was of unsound mind; that when Mr. Barrera read the will, he did so in a voice that could be heard by Mrs. Clark; that there was no question in her mind that she understood it; that, at such time, she was not under sedation; that she was perfectly rational; that there was no question in her mind that Mrs. Clark knew what she was doing and was doing what she intended to do.

Mrs. Guinn further testified that there was a strong bond of affection between Mrs. Clark and Rumalda Mata; that Ru-malda Mata was a kind, cooperative, loving individual and, in the last years of Mrs. Clark’s life, she was the only friend that she had.

Mrs. Kathleen Pyle was an LVN who worked at Premont Nursing Home. She testified that she first met Victoria Clark when she came to the nursing home; that, at different times, she worked on different shifts and saw her on all of such shifts and saw her regularly until she died; that Mrs. Clark always knew her when she went into the room and called her “Miss Pyle”; that she had numerous conversations with her; that Mrs. Clark would signal for her by use of the signal cord on her bed; that she would sometimes ask for medication; that she was able to sit on the side of her bed when she ate and this continued until shortly before her death; that she was able to turn herself in bed from side to side; that she could take her pills straight; and that she insisted on staying clean.

Miss Mary Lopez was a nursing aide who worked at Premont Nursing Home for nine years. She testified that part of her duties was to attend to Victoria Clark; that Mrs. Clark was able to operate the signal pull on the light whenever she needed something; that when she answered the calls, Mrs. Clark would tell her what she wanted her to do; that she never had any trouble communicating with Mrs. Clark; that Mrs. Clark had strong likes and dislikes and wanted to keep her clothes clean; that when Mrs. Clark was asked questions, she would respond normally; that Mrs. Clark did not cry, scream or holler; that Mrs. Clark was a determined, strong-willed woman until shortly before her death and that Mrs. Clark was not childish.

Mrs. Braulia Quintanilla testified that she was working as a nurses aide at Premont Nursing Home in July of 1971 at the time Mrs. Clark was admitted to the nursing home and until after Mrs. Clark’s death; that she worked the seven to three morning shift; that she would see Mrs. Clark several times every shift. She testified that Mrs. Clark could turn in her bed until shortly before her death; that she never saw her in a fetal position; that she could sit up on the side of the bed to eat; that if she wanted a certain type of food, she would ask for it; that Mrs. Clark could ring for a nurse and that when she answered, Mrs. Clark would tell her what she wanted; that she had no trouble communicating with Mrs. Clark; that Mrs. Clark always wanted to be very clean and that she was able to use her bedpan alone; that Mrs. Clark had a strong will of her own.

Mr. Hector Barrera was the notary when he took the oath on the self-proof certificate to the will of Mrs. Clark, dated November 8, 1971. He testified that he had been Justice of the Peace of Precinct No. 4 in Jim Wells County for twenty years and had known Victoria Clark for 18 or 20 years. He stated that Mrs. Pollard called him to come to the nursing home to see Mrs. Clark and as a result of such phone call, he went to the nursing home that day, and went to Mrs. Clark’s room; that when he entered the room, Mrs. Clark recognized him, greeted him and shook hands with him; that they chatted for about ten minutes and Mrs. Clark then asked him to prepare a will for her; that he told her that he was not authorized to prepare wills and that it had to be prepared by an attorney. Mrs. Clark then asked him if he would recommend one, and he said he would be glad to; that Mrs. Clark then told him that she wanted a will prepared and she wanted to leave everything to Mrs. Rumalda Mata; that he told her he would take care of it and subsequently called Mr. Warburton in Alice and told Mr. Warburton that Mrs. Clark desired to have a will prepared, leaving everything to Rumalda Mata; that, as a result of such conversation, he was delivered the instrument identified as Plaintiff’s Exhibit No. 21, which is the will of November 8, 1971; that it was brought to him in a sealed envelope; that he opened it and it contained the prepared will, a copy, and a bill. He stated that on this same day he took the will to the nursing home to Mrs. Clark’s room; that Mrs. Clark was sitting on the side of the bed and when she saw that he had an envelope in his hands, she asked him if that was the will she had requested to be prepared; that he told her it was; and that she would have to get two witnesses. She told him she would like to get Mrs. Guinn and Mrs. Pollard as witnesses. He testified that the will was read to her; that she listened attentively and that he asked her if that was what she wanted and she said, “That is exactly the way I want it.” He testified that Mrs. Guinn was present during the time he read the will, but that he thought that Mrs. Pollard came in towards the end of the reading; that Mrs. Clark signed the will on a little hospital table and the two attesting witnesses, Mrs. Pollard and Mrs. Guinn, then signed it; that he then proceeded to take the self-proof certificate, which he read and notarized.

Barrera testified, based on his observations of and conversations with Mrs. Clark that, at the time of signing of the will, Mrs. Clark was (a) capable of understanding the nature of the document that she signed, (b) capable of knowing and understanding the effect of signing the will leaving her property to Mrs. Mata, and (c) capable of knowing the general nature and extent of her property. He further stated that her mind was as sound as the day he met her.

Mr. W. M. Jackson testified that, at and before the death of Mrs. Clark, he was an assistant trust officer and vice-president of the Alice National Bank; that the Alice National Bank was the trustee under a trust instrument executed by Mrs. Alice Kempshall, a sister of Victoria Clark. Such trust instrument was introduced into evidence as an exhibit and one of the properties therein covered is an undivided one-half interest in a tract of 492.3 acres in Bexar County, Texas, (the other one-half interest was owned by Victoria Clark). In such trust, Mrs. Kempshall is the primary beneficiary, and upon her death Victoria Clark is the successor beneficiary, for and during her natural life. He testified that he knew J. 0. Burk, Jr., who is one of the contestants. He said that Mr. Burk brought a lease agreement to the Alice National Bank and presented it to him, and represented to him that it was a lease agreement Victoria Clark had signed and indicated her signature on such instrument. This lease agreement was introduced into evidence. It is dated October 30,1971, and is a lease agreement on the 486 acre tract in Bexar County. It is purportedly signed by Victoria Clark and bears the signature “Victoria Clark.” This lease agreement contains the signature of J. 0. Burk, Jr., under a line which states “Accepted and Approved this the first day of November, 1971.”

Mr. Lawrence Warburton, Esq., testified that on various occasions in the past the firm of which he is a member had represented Victoria Clark, and that Mr. Jake Floyd of such firm had prepared two previous wills for Mrs. Clark, one in 1946 and one in 1953. Copies of these wills were introduced into evidence.

      . The pertinent portions of such findings of fact and conclusions of law here involved may be summarized as follows:
      (1) Victoria Clark, at the time of signing, making and publishing her last will dated November 8, 1971, was of sound and disposing mind and memory.
      (2) Victoria Clark, at the time of signing the last will and testament dated November 8, 1971: (a) knew and had sufficient mental ability to understand and knew the effect of her act in making such will; (b) knew and had sufficient mental ability to understand the general nature and extent of her property; (c) knew and had sufficient mental ability to know her next of kin and natural objects of her bounty; (d) had sufficient memory to collect in her mind the elements of the business to be transacted and to hold them long enough to perceive their obvious relation to each other and to be able to form a reasonable judgment as to them.
      (3)The last will of Victoria Clark dated November 8, 1971, is natural in its terms and provisions and provides for a natural disposition of the estate of Victoria Clark.
      As a conclusion of law, the trial court found that at the time of executing the will dated November 8, 1971, Victoria Clark had testamentary capacity to make a valid will.
      The trial court made findings with regard to execution of the will and undue influence, finding that the will was executed with the formalities and solemnities required by law; that no undue influence existed or was exerted upon Victoria Clark; and that such will was not procured by nor was it the result of undue influence. However, appellants make no contention on this appeal that such will was not executed with the formalities and solemnities required by law nor do they make any complaint on the matter of undue influence; and they have no points of error pertaining to these matters.

      . “It must be kept in mind that the issue is, not whether the testator was, at the time of executing the will, of ‘sound mind,’ as that term is generally understood in its broadest sense, but whether or not he was capable at such time of understanding that he was making His will, the nature and extent of his property, the objects of his bounty, and the disposition he was making of his property. Imperfect memory, caused by sickness or old age, forgetfulness of the names of persons a testator has known, idle questions or statements, or requiring a repetition of information, will not be sufficient to establish incompetency, if he had sufficient intelligence remaining to understand the act he was performing, the property he possessed, the disposition he was making thereof, and the persons or objects of his bounty . .” McCannon v. McCannon, 2 S.W.2d 942, 944 (Tex.Civ.App. — Galveston 1927, writ dism’d).

      . More in the nature of an admission is the written lease agreement between Mrs. Clark and J. O. Burk, Jr., one of contestants, admitted into evidence, dated October 30, 1971, less than 10 days prior to the execution of the will by Mrs. Clark. This instrument is a contract of lease signed both by Mrs. Clark and Burk covering a tract of land in Bexar County. It has been held that less mental capacity is required to enable a testator to make a will than for him to make a contract. Smith v. Welch, 285 S.W.2d 823 (Tex.Civ.App. — Texarkana 1955, writ ref’d n. r. e.); Rudersdorf v. Bowers, 112 S.W.2d 784 (Tex.Civ.App. — Galveston 1938, writ dism’d). It would appear that Mr. Burk recognized and acknowledged that Mrs. Clark had capacity to enter into a contract at the time such lease contract was executed.

      . Armstrong v. Employers Casualty Co., 357 S.W.2d 168 (Tex.Civ.App. — Waco 1962, no writ); Washington National Ins. Co. v. Chavez, 106 S.W.2d 751 (Tex.Civ.App. — El Paso 1937, writ dism’d); Universal Life & Accident Ins. Co. v. Ledezma, 61 S.W.2d 165 (Tex.Civ.App. — Beaumont 1933, writ dism’d); Tex.Rev.Civ.Stat.Ann. Article 4477 (1966) and Article 3731a (Supp.1975).

      . Article 3716, Tex.Rev.Civ.Stat.Ann. (1926): “In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

      . See Oakes v. Prather, 81 S.W. 557 (Tex.Civ.App. — 1904, writ ref’d); 2 McCormick and Ray, Texas Law of Evidence, Section 1398 (1956).

      . She testified that her mother, Mrs. West, was unable to communicate or carry on conversations while she was at the rest home.

      . The testimony of Mrs. Guinn herein summarized does not include that portion of her testimony which was excluded by the court, which is the subject of another point of error and such testimony will be discussed under such point of error.


text:
    Newton B. SCHWARTZ et ux., Appellants, v. Vincent VECCHIOTTI et al., Appellees.
    No. 16549.
    Court of Civil Appeals of Texas, Houston (1st Disk).
    Oct. 23, 1975.
    Rehearing Denied Nov. 20, 1975.

      Newton B. Schwartz, Houston, for appellants.
    Steven C. Oaks, Houston, Butler, Binion, Rice, Cook & Knapp, Houston, of counsel, for appellees.
   PEDEN, Justice.

Defendants Newton Schwartz and wife Annita Schwartz appeal from a summary judgment in a suit brought to enforce a judgment of the Supreme Court of New York. Appellants’ principal complaints are that the judgment of the New York court was not properly proved in the Texas court and that it is not a final and enforceable judgment because the defendants are appealing from it. We affirm.

On October 24, 1974 judgment was rendered for appellees against Newton B. Schwartz, Annita Schwartz, Jerry Silver and Environmental Regulation, Inc., in the Supreme Court of New York, a court of general jurisdiction, for $329,334.10, including interest and court costs. The New York judgment appears to be based on a promissory note signed by defendants-appellants except Annita Schwartz, who by power of attorney guaranteed the obligation. Apparently the note was secured by a mortgage on certain real estate located in Albany County, New York.

In response to appellees’ suit to enforce this New York judgment in Harris County, Texas, the appellants filed their original answer, plea in abatement and motion to dismiss. Appellees filed a motion for summary judgment, motion to take judicial notice of the law of New York, and affidavits of Mr. Charles M. Kotick, a licensed attorney in New York. Appellants filed objections to the motion to take judicial notice, motion to strike Mr. Kotick’s affidavit and an affidavit of Arthur Stephen Penn, a licensed attorney in New York.

Appellants’ fourth point of error is that the trial court erred in granting the summary judgment because there was no certified or admissible copy of the purported New York judgment in evidence upon which to enter summary judgment.

Art. 3731a, Vernon’s Texas Civil Statutes, provides for the admission as evidence of 'official written instruments, including judgments of the courts of other states. In our case the certified copy of the New York judgment was not authenticated as authorized by Sec. 4 of Art. 3731a in that it was not accompanied with a certificate made by a judge of a New York court of record that the attesting officer has the legal custody of the judgment. However, Sec. 6 of Art. 3731a states: “This rule does not prevent the proof of official records or of entry or lack of entry therein by any method authorized by any applicable statute or by the rules of evidence at common law.”

An authentication of the judgment of a sister state, when sued upon in the courts of another state, may be done in accordance with the statutory method or by a witness who has compared the copy offered in evidence with the original record entry thereof; and when so proven such copy is admissible as an “examined copy” and is sufficient proof, prima facie, of it. St. Louis Expanded Metal Fireproofing Co. v. Beilharz, 88 S.W. 512 (Tex.Civ.App.1905, no writ), citing Harvey v. Cummings, 68 Tex. 599, 5 S.W. 513 (1887); Tourtelot v. Booker, 160 S.W. 293 (Tex.Civ.App.1913, writ ref.); Givens v. Givens, 195 S.W. 877 (Tex.Civ.App.1917, no writ); 34 Tex.Jur.2d 401, Judgments § 379.

Filed among the papers in the trial court was an affidavit executed in support of the plaintiffs’ motion for summary judgment on December 31, 1974, by Charles M. Ko-tick. In it he stated that he has personal knowledge of the facts stated therein, having been the attorney primarily responsible for representing the plaintiffs in the action in the Supreme Court of the State of New York entitled “Vincent Vecchiotti and Jason Minick, Plaintiffs against Jerry Silver, Newton B. Schwartz, Environmental Regulation, Inc. and Annita Schwartz, Defendants” with index number 12458/1974.

Further, that on or about October 24, 1974, a judgment, a copy of which is attached to the affidavit as Exhibit “A”, was duly entered in that case and filed in the Office of the Clerk of the County of New York. That the judgment was entered pursuant to an order of the court dated October 21, 1974, and filed on October 23, 1974. An attached copy is marked Exhibit “B”.

The photocopy of the judgment attached to the affidavit is identical with that attached to the Plaintiffs’ Original Petition filed on November 11, 1974 in our case. These identical exhibits bear the caption and index number noted by Mr. Kotick. These copies of the judgment state:

“An order of this court having been entered and filed in the Clerk’s office of the County of New York on the 23 day of October, 1974, granting plaintiffs’ motion for summary judgment directing that plaintiffs have and recover judgment against the defendants in the sum of $320,000.00, with interest thereon at the rate of six per cent (6%) per annum from May 1, 1974, and the costs and disbursements of this action, and said costs and disbursements of this action having been duly taxed by the Clerk of this court in the sum of $108.50.
“NOW, ON MOTION OF ROBINSON, SILVERMAN, PEARCE, ARONSOHN, SAND & BERMAN, ESQS., attorneys for the plaintiffs, it is
“ADJUDGED that the plaintiffs, Vincent Vecchiotti, of 472 Liberty Street, Little Ferry, New Jersey, and Jaxon Min-ick, of 24 Aviation Road, Albany, New York, recover judgment against the defendants, Jerry Silver and Environmental Regulation, Inc., of 10 East 53rd Street, New York, New York, and Newton B. Schwartz and Annita Schwartz, of 500 Branard at Garrott, Houston, Texas, in the sum of $320,000.00 with interest thereon at the rate of six per cent (6%) per annum from May 1, 1974, in the sum of $9,225.60 and the costs and disbursements of this action as taxed by the Clerk of this court in the sum of $108.50, and that the plaintiffs have execution therefor, making in all the total of $329,334.10.
“Judgment signed this 24th day of October, 1974.”
NORMAN GOODMAN
Clerk
FILED
Oct. 24, 1974

We consider that the New York judgment was thus properly a part of the summary judgment evidence before the trial court, but in addition we note that in our case appellant Newton Schwartz (who represented both defendants) filed on February 25, 1975, an affidavit in opposition to the plaintiffs’ motion for summary judgment in which he stated that he had submitted an attached exhibit to the Clerk of the Supreme Court, Appellate Division, in New York. The first page of the exhibit states:

“RE: VINCENT VECCHIOTTI & JASON MINICK-PLAINTIFFS-RESPONDENTS VS. NEWTON B. SCHWARTZ & ANNITA F. SCHWARTZ, Defendants-Appellants
CIVIL APPEAL PRE-ARGUMENT STATEMENT
“APPEAL FROM THE SUPREME COURT OF THE STATE OF
NEW YORK, COUNTY OF NEW YORK
“JUDGMENT dated October 24, 1974
“Index No. 12458/74
“Justice Hon Samuel Rosenberg J.S.C.
“Appeal filed Novenber 20, 1974
“COUNSEL:
“Newton B. Schwartz pro se 500 Branard, Houston, Texas 77006 ac713 “2245057-5292645 for Appellants
“Robinson, Silverman, Pearce, Aronshon, Sand & Berman, Charles M.
“Kotick, 230 Park Avenue, New York, N.Y. 212/MU.07766 for Respondents
“Method of Disposition in the Trial Court: Appeal from Order granting judgment on a second lien real estate note (Mortgage Note) against Defendants jointly and severally for $320,000 with interest thereon at 6% per annum from May 1, 1974 and costs and disbursements. The Order was entered granting Plaintiffs’ Motion for Summary Judgment on affidavits in lieu of Complaint.
“ISSUES PROPOSED TO BE RAISED ON APPEAL:”

This affidavit was not withdrawn or contradicted by the appellants. Except for the amount of the $108.50 item of costs and disbursements, it constitutes a judicial admission of the accuracy of all the allegations of the essential elements of the New York judgment and, for this additional reason, was properly a part of the summary judgment evidence.

Appellants’ second and third points, which are related to their fourth point, complain that the trial court erred in granting summary judgment because (2) there was no final, valid and subsisting judgment in the New York courts, and (3) there was no allegation or proof of the law of New York as to the validity or finality of the judgment in question. Under these points the appellants assert that absent judicial notice of New York law it is presumed to be the same as Texas law and that under Texas law a judgment must be signed by the judge.

We overrule these points. In the trial court the appellees filed a motion (and the appellants filed an objection) under Rule 184(a) of the Texas Rules of Civil Procedure consisting of a request that the court take judicial notice in this cause, “of the Common Law, Public Statutes, Court Decisions, of the State of New York.” The appellant has not shown the trial court’s ruling on the objection to the motion. We presume, in support of the judgment, that the trial judge took judicial notice of the laws of New York.

Laws of New York were presented to the trial court in memoranda filed by the parties. Laws of another state, properly established, are not a part of the record in a summary judgment proceeding. These are matters of which courts take judicial knowledge in the manner prescribed by law. Marsh v. Millward, 381 S.W.2d 110 (Tex.Civ.App.1964, writ ref. n. r. e.); Doppke v. American Bank and Trust Co., 402 S.W.2d 317 (Tex.Civ.App.1966, writ ref. n. r. e.).

The appellees called to the trial court’s attention several decisions of the Appellate Division, New York Supreme Court (including In re Bailey, 265 App.Div. 758, 40 N.Y.S.2d 746, 1st Dept., affirmed 291 N.Y. 534, 50 N.E.2d 653) plus Section 5519, New York Civil Practice Law and Rules, to show that defendants are not afforded a stay of execution of a judgment where no undertaking is given on appeal beyond one for costs.

Texas law on this subject is to the same effect.

“Even if a judgment is subject to appeal, or if the time has not expired in which to file motion to vacate or for a new trial, the judgment has a finality which entitles it to full faith and credit under the Federal Constitution. .
“In Texas the filing of an appeal bond, or affidavit in lieu of bond, will not suspend a judgment where review is sought by appeal or writ of error. Rule 357, T.R.C.P.
“See also annotation, 2 A.L.R.3rd 1384, Judgment Subject to Appeal as Entitled to Full Faith and Credit.” Moody v. State, 520 S.W.2d 452 (Tex.Civ.App.1975, no writ).

Rule 364 provides for the suspension of execution of a judgment by filing a super-sedeas bond in a sum at least the amount of the judgment, interest, and costs.

Uncontroverted testimony by proper affidavit in our case states that the defendants did not file a bond in the amount of the judgment in the New York action.

The appellants do not appear to have raised any question in the trial court about the regularity of a judgment, under New York law, that was signed by the clerk rather than the judge, and we presume, in support of the judgment, that the trial court took judicial notice that under New York law the judgment was properly signed. The appellants did not include this point in their list of Issues Proposed to be Raised on Appeal filed with the Appellate Division in New York.

The appellants also complain that the trial court erred in permitting oral testimony at the hearing on the motion for summary judgment. We agree. Rule 166-A(c) includes a provision that no oral testimony shall be received at the hearing. See also Richards v. Alien, 402 S.W.2d 158 (Tex.1966). In this case the testimony concerned only New York law. We cannot say it constituted reversible error. Rule 434.

We have examined each of the appellants’ other points of error and find that none of them presents reversible error. We hold that the summary judgment proof in this case shows that the appellees have shown as a matter of law that the New York judgment is final, valid, and subsisting and is entitled to be accorded full faith and credit under Article 4, Section 1 of the U. S. Constitution.

Affirmed.