author: OSBORN, Justice.

text:
    In the Matter of P. B. C.
    No. 6503.
    Court of Civil Appeals of Texas, El Paso.
    June 2, 1976.
    Rehearing Denied June 30, 1976.

      Will Hadden, Odessa, for appellant.
    Bill W. McCoy, County Atty., Michael D. Atkins, Asst. County Atty., Odessa, for ap-pellee.
   OPINION

OSBORN, Justice.

This is an appeal from a proceeding in which the Juvenile Court waived its jurisdiction of a minor under § 54.02 of the Texas Family Code, and transferred P. B. C. to the District Court for criminal proceedings. We affirm.

The petition requesting the Juvenile Court to waive its jurisdiction recites that P. B. C. is sixteen years old and states that he has violated the Penal Laws of this State of the grade of felony, and then enumerates five separate offenses when he knowingly and intentionally delivered a controlled substance, namely: methamphetamine and heroin, to another person. The answer to the petition includes a plea in bar, a plea in abatement, many special exceptions and a general denial.

The Appellant’s Point of Error One asserts that the petition to certify did not specify and affirmatively allege the matters intended to be proved. The next point asserts error because of a failure to allege the Penal Law violated by the acts of the minor as required by § 53.04 and § 54.02 of the Texas Family Code. The pleading alleges in five separate paragraphs the particular date and place of the offense, and the person to whom the minor is alleged to have delivered the described controlled substance, and sets forth that such conduct violated the Penal Laws of this State of the grade of felony. It specifically requests the Court to consider all evidence pertaining to the six enumerated issues set forth in § 54.-02(f) of the Texas Family Code. We believe that such pleading gave fair notice of the offenses involved and the issues to be decided by the Court. As to the exact Penal Law violated, § 53.04(d)(1) provides that the petition for transfer hearing must state:

“with reasonable particularity the time, place, and manner of the acts alleged and the penal law or standard of conduct allegedly violated by the acts;”.

A commentary on this particular provision of the Family Code as set forth in 5 Tex.Tech.L.Rev. 550 (1974), states:

“Subsection (d) specifies the information that must be included in the petition. Paragraph (1) requires an allegation with reasonable particularity of the time, place, and manner of the acts alleged and the penal law or standard of conduct allegedly violated by the acts. The intent of the committee was that the petition not only allege the essential facts, but also state which statute is relied upon to give the juvenile court jurisdiction. For example, a petition which merely alleged that the child engaged in delinquent conduct because he violated a law of the grade of felony would not be sufficient. A petition would be sufficient, however, if in addition to the allegation of essential facts it alleged that the offense of burglary was committed by the child or that a particular section in the Penal Code was violated by the child. * * *

In this case there is no allegation as to the Penal Law involved and perhaps in such instance the better practice would be to state that there was a violation of Tex.Rev. Civ.Stat.Ann. art. 4476-15, but as noted in the commentary quoted above, there is sufficient compliance where the particular offense is stated and in this particular instance the five enumerated paragraphs state the offense, namely: delivery of a named controlled substance. If, as set forth in the commentary, stating that the offense of burglary was committed is sufficient, then there is no less reason why stating that delivery of a controlled substance, namely: methamphetamine, and delivery of a controlled substance, namely: heroin, should be any less sufficient in describing the Penal Law violated. Seldom will a description of the acts alleged constitute a statement of the offense or Penal Law violated, but it does in this case. Points of Error One and Two are overruled.

The next two points assert that the trial Court erred in failing to make the findings required by § 54.02 of the Texas Family Code and in failing to certify its action as required by that same section. The three-page transfer order recites the five separate offenses alleged against the minor, a recitation that the Court has considered each of the six issues required to be considered under § 54.02(f), along with an enumeration of other acts of misconduct by the minor. The Court then concludes in the order “that the evidence and reports heretofore presented to the Court demonstrate to the Court that there is little, if any prospect of adequate protection of the public and likelihood of reasonable rehabilitation of the said (P. B. C.) by use of procedures, services and facilities currently available to the Juvenile Court.” In the following paragraph the trial Court waives jurisdiction and the minor is transferred to the District Court for criminal proceedings. We conclude that the findings are sufficient and that the transfer order constitutes a proper certification to the District Court for criminal proceedings. Points of Error Three and Four are overruled.

Points of Error Five, Six and Seven attack the constitutionality of the provisions of § 54.02(e) of the Texas Family Code, and in particular the introduction into evidence of certain portions of the probation officer’s investigative report and the trial Court’s findings as to the minor’s prior conduct based upon such report. Basically, the complaint is that the report which the trial Court considered was based on hearsay and not the personal knowledge of the one preparing the report. This same argument was considered and rejected in Hughes v. State, 508 S.W.2d 167 (Tex.Civ.App. — Corpus Christi 1974, writ ref’d n. r. e.) which involved a transfer hearing, and In Matter of A. A. A., 528 S.W.2d 337 (Tex.Civ.App.— Corpus Christi 1975, no writ) which involved an adjudication hearing. For the reasons stated in those opinions we conclude that the trial Court properly considered the investigative report by the probation officer and the report from the staff psychologist, both of whom testified and were subject to examination concerning their reports and the findings and conclusions therein. Points of Error Five, Six, and Seven are overruled.

The next two points assert that the minor has been denied his constitutional right against self-incrimination. It is asserted that had P. B. C. testified at the transfer hearing, then he would have waived his constitutional right against self-incrimination in any subsequent adjudication hearing in Juvenile Court or sentencing proceedings in Criminal Court because of the provisions of § 51.13 of the Texas Family Code. Such argument misconstrues the intention of the statute. The purpose of the statute is set forth in the commentary in 5 Tex.Tech.L.Rev. 532 (1974) which states:

“ * * * Subsection (b) is a statement of the traditional confidentiality of juvenile court proceedings and the evidence used in those proceedings. Evidence introduced in juvenile court proceedings may only be used in subsequent juvenile court proceedings or in subsequent sentencing proceedings in criminal court to the extent permitted by the Texas Code of Criminal Procedure. Present Texas Law does not permit evidence concerning the defendant’s experience in juvenile court to be introduced into the penalty hearing in a criminal case. See Tex.Code Crim.Proc.Ann. art 37.07 (1966); Slaton v. State, 418 S.W.2d 508 (Tex.Crim.App.1967). Subsection (b), therefore, would permit the use of evidence in juvenile proceedings only if the law on criminal sentencing were changed. * * * ft

With regard to the information furnished by the minor to the juvenile probation officer and the psychologist, both interviews were conducted with a cooperative, consenting minor who was represented by counsel, and the psychologist was called as a witness at the hearing by the attorney for the minor. There is no indication of any violation of a constitutional right against self-incrimination. Points of Error Eight and Nine are overruled.

By the next three points of error it is contended that the minor was denied his constitutional rights because he was not handled as a juvenile immediately after the undercover agent determined that he was only fifteen years old, and, further, that there was an unreasonable delay of four and one-half months between the time the offenses were first committed and the filing of the petition to transfer the minor to the District Court, and such transfer resulted in a failure to afford him the benefits of the Texas juvenile system. These points are without merit.

Law enforcement officers do not operate under a constitutional duty to halt an investigation and make an arrest the very moment they have the minimum evidence to establish probable cause. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). Neither were the undercover agents required to handle P. B. C. as a minor immediately after learning that he was a minor following the first instance of delivery of a controlled substance. While in some instances the facts might establish an unreasonable delay to the prejudice of the person charged with a criminal offense, the facts in this case do not establish either an unnecessary delay or prejudice to the minor. The Appellant in this case had no constitutional right to be tried as a juvenile. Broadway v. Beto, 338 F.Supp. 827 (N.D.Tex.1971). He was afforded a full hearing prior to the entry of the transfer order and the fact that the trial Court decided to transfer him to the District Court for trial rather than retain jurisdiction and adjudicate him as a juvenile did not constitute a denial of any constitutional right. Points of Error Ten, Eleven, and Twelve are overruled.

The next two points contend that the trial Court erred in waiving its jurisdiction because the findings made by the trial Court are not supported by the evidence and are against the great weight and preponderance of the evidence. The evidence in this case consisted of testimony from two undercover agents who testified concerning their transactions with the minor, a field service counselor for the Texas Youth Council, who expressed the opinion that P. B. C. could not be rehabilitated in the juvenile system of this State, and two probation officers from Ector County, each of whom expressed the opinion that P. B. C. could not be rehabilitated if handled as a juvenile, and they were further of the opinion that the public could not be adequately protected from him if he were handled as a juvenile. The examining psychologist expressed the opinion that there was a fairly good chance of rehabilitation if the minor was in a program where he was required to stay for a year or two. Having considered all of the evidence in the record, we conclude that there is evidence to support the Court's findings and that those findings are not against the great weight and preponderance of the evidence. Points of Error Thirteen and Fourteen are overruled.

The next two points contend that the minor was denied his constitutional rights because the hearing on the issue of waiver and transfer of jurisdiction was without a jury. The Legislature has specifically provided in § 54.02(c) that the hearing shall be without a jury. In McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), the Court said:

“ * * * we conclude that trial by jury in the juvenile court’s adjudicative stage is not a constitutional requirement.”

The Court in that opinion noted that the principal issue in determining the due process standard in juvenile proceedings is fundamental fairness. Having reviewed the record and findings made by the trial Court which we have heretofore concluded were supported by competent evidence, we find no denial of a constitutional right simply because the Legislature mandated that the findings be made by the trial judge rather than a jury. Points of Error Fifteen and Sixteen are overruled.

The next two points of error complain that the trial Court did not require the State to prove its facts beyond a reasonable doubt and that such failure constituted a denial of the minor’s constitutional rights. The basic complaint is that while § 54.03(f) requires that in an adjudication hearing the burden of proof is "beyond a reasonable doubt,” in a waiver and transfer hearing § 51.17 only requires proof by a “preponderance of the evidence.” This being a non-jury case, and the Court’s order not having stated whether his findings were based upon a “preponderance of the evidence” or from the facts proved “beyond a reasonable doubt,” we assume that, following the Texas Rules of Civil Procedure, the findings were based upon a preponderance of the evidence. The basis for the Court’s decision in Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) that adjudicating the minor to be a juvenile would result in lengthy confinement does not exist in this case. The waiver and transfer hearing does not result in any determination of guilt or innocence or in any confinement or punishment. This is merely a preliminary hearing to determine which route to take with regard to whether the minor should be treated as a juvenile or an adult in future proceedings. Mr. Justice Brennan, in delivering the opinion of the Court in Re Winship, and stating the requirement that in the adjudication proceeding the burden of proof must be beyond a reasonable doubt, said:

“ * * * there will be no effect on the procedures distinctive to juvenile proceedings that are employed prior to the adjudicatory hearing.”

We conclude that the Legislature has not denied any constitutional right by failing to require that the preliminary hearing must be conducted under a standard requiring that the evidence establish the necessary facts for waiver and transfer beyond a reasonable doubt. Points of Error Seventeen and Eighteen are overruled.

Point of Error Nineteen complains that the title or caption of Title 3, Texas Family Code, does not meet the requirements of Article III, § 35 of the Texas Constitution because such caption makes no reference to waiver of jurisdiction and transfer to a criminal court as is permitted in § 54.02 of the Code. Point of Error Twenty complains that certain provisions of Title 3 of the Texas Family Code, including § 54.02, are void because they are vague, indefinite and contradictory. Point of Error Twenty-One contends the trial Court erred in failing to provide that the transfer order be suspended pending this appeal. We have considered each of these points and find that no error is presented. Points of Error Nineteen through Twenty-One are overruled.

The judgment of the trial Court is affirmed.


source: Caselaw Access Project

author: EVANS, Justice.

license: Public Domain

text:
    FIRST SOUTHERN PROPERTIES, INC., et al., Appellants, v. Fitzhugh L. GREGORY, Appellee.
    No. 16706.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 3, 1976.

      Lackshin, Nathan & Berg, Herbert N. Lackshin, Houston, for appellants.
    Harry S. Jones, Bellaire, Charles C. Smith, Jr., Cameron, for appellee.
   EVANS, Justice.

The basic question in this case is whether appellee, Fitzhugh L. Gregory, occupies the status of a bona fide purchaser under Section 24.02, Tex.Bus. & Com.Code, with respect to a conveyance executed by his brother, Arthur J. Gregory, in violation of a pendente lite injunctive order issued during a pending divorce action.

Appellee, Fitzhugh L. Gregory, brought this action in trespass to try title against First Southern Properties, Inc. and its president, Herbert Axelrad, who specially answered that the interest in suit had been acquired by First Southern Properties, Inc. under execution sale and that a prior conveyance from the judgment debtor, Arthur J. Gregory, to appellee had been executed without consideration and as a result of a fraudulent conspiracy between the two brothers. After a non-jury trial, the trial court entered judgment for appellee. We affirm.

In separate findings of fact the trial court found that appellee had acquired the one-half interest in a 20 acre tract of land under a deed from his brother, Arthur J. Gregory, dated January 2, 1970, which was filed for record on January 14, 1971. That on August 3, 1971, the constable purported to sell said interest to appellant, First Southern Properties, Inc. based upon execution under divorce judgment entered April 29,1971, in favor of Louise Gregory, former spouse of the said Arthur J. Gregory. The court further found that on the date of said constable’s deed, the said Arthur J. Gregory had divested himself of his separate undivided one-half interest by reason of the earlier recorded conveyance to appellee, his brother. That said conveyance had been made in good faith for a valuable consideration and with no intent to defraud the said Arthur J. Gregory’s then wife or possible creditors, and that appellee did not know of or participate in any attempt to defraud.

In points of error one through eight and eleven through twenty-one, appellants contend that the trial court erred in finding that the conveyance to appellee was made in good faith, for a valuable consideration and with no intent to defraud the grantor’s then wife or possible creditors, and in finding that appellee did not know of or participate in the alleged fraud because such findings are not supported by factually sufficient evidence and are against the great weight and preponderance of the evidence. We shall consider these points collectively.

On January 2, 1970, Arthur J. Gregory owned as his separate property an undivided one-half interest in a 20 acre tract of land. The remaining one-half interest was owned by a former wife, Alta Gregory. On that date Arthur J. Gregory executed an instrument whereby he purported to “irrevocably transfer in trust” his office equipment, automobile, truck and the subject land to himself as trustee for the benefit of his daughter. By deed of same date, he purported to convey to his brother, appellee, his entire interest in the 20 acre tract. This conveyance recites a consideration of $10.00 in cash and the assumption of an outstanding indebtedness to Employees Credit Union in the original principal amount of $9,500.00. The certificates of acknowledgment attached to these two instruments each bear the same date, January 2, 1970, and are shown to have been acknowledged before Billie Brannon, a notary public, who subsequently married the said Arthur J. Gregory.

On January 2, 1970, divorce proceedings were pending between Arthur J. Gregory and his second wife, Louise Gregory. At an earlier hearing in those proceedings, held in June 1969, the court had enjoined Arthur J. Gregory from selling any of his separate or community property pending final hearing in the matter. A pendente lite order to that effect was subsequently entered on November 12, 1970. Although it is not clear from the record whether Gregory was in the courtroom at the time the trial court announced its order, the record reflects that Gregory was made aware of the injunctive order.

On April 29, 1971, which was subsequent to the date of the conveyance to appellee and after it was filed for record, Louise Gregory was granted a divorce in the pending divorce proceedings. Under the divorce judgment the undivided one-half interest in suit was awarded to Arthur J. Gregory and Louise Gregory was awarded a monetary recovery against Arthur J. Gregory in the sum of $2500.00 which was secured by a lien on said undivided interest. The basis for this monetary award is not clear but the award appears to have been made in adjustment of the parties’ property rights. This decree further recites that Arthur J. Gregory had transferred the interest to his daughter in fraud of Louise Gregory’s rights and that the daughter “is holding said real property in constructive trust and as trustee for the benefit of” Arthur J. Gregory. No mention is made in the decree of the conveyance from Arthur J. Gregory to appellee, and Arthur J. Gregory testified that he had not advised either his attorneys or the court that he had made such a conveyance.

Section 24.02, Tex.Bus. & Com.Code, provides in pertinent part:

“(a) A transfer of real or personal property ... is void with respect to a creditor, purchaser, or other interested person if the transfer . . . was intended to
(1) delay or hinder any creditor, purchaser, or other interested person from obtaining that to which he is, or may become, entitled; or
(2) defraud any creditor, purchaser, or other interested person of that to which he is, or may become, entitled.
“(b) The title of a purchaser for value is not void under Subsection (a) of this section unless he purchased with notice of
(1) the intent of his transferor to delay, hinder, or defraud; or
(2) the fraud that voided the title of his transferor.”

On January 2,1970, the date of Arthur J. Gregory’s conveyance to his brother, the divorce proceedings with his former wife, Louise Gregory, were pending and he was under temporary injunctive order of the court not to dispose of any of his community or separate property. In knowing violation of that order he executed the irrevocable transfer in trust for the ostensible benefit of his daughter which the divorce court subsequently determined to have been executed in fraud of his wife’s rights. He also executed the purported conveyance to his brother, appellee herein, which he did not bring to the attention of the divorce court. Subsequent to January 2, 1970, the said Arthur J. Gregory retained possession of the deed to his brother and withheld it from record for more than a year, during which time he continued to collect rental from the property and made the monthly payments to the first lien holder. In July 1971, Arthur J. Gregory filed applications under oath, in proceedings which he brought against appellant to enjoin the constable’s sale, wherein he alleged that he was a “present owner and holder of the title” to the property. Notwithstanding the explanations offered by Arthur J. Gregory with respect to his failure to place the conveyance of record and as to his conduct indicating continuation of his claim of ownership, these circumstances strongly tend to show that he intended to defraud his former wife, Louise Gregory, by placing the legal title to the property in his brother’s name.

Although the blood relationship between Arthur J. Gregory and appellee does not, in itself, establish fraud, such relationship becomes important when considered with the other circumstances tending to show a fraudulent intent. Texas Sand Co. v. Shield, 381 S.W.2d 48, 53 (Tex.1964). At the time of his purported conveyance to appellee, Arthur J. Gregory was under injunctive order of the divorce court not to dispose of either his separate or community property. Not only did the said Arthur J. Gregory directly violate this order, he elected not to advise either his counsel or the court that he had conveyed the property to his brother; on the contrary he allowed the entry of a judgment by the court based on the premise that he still held title to the property. This, in our opinion, constituted prima facie evidence of his fraudulent intent. Texas Sand Co. v. Shield, supra; Briscoe v. Bronaugh, 1 Tex. 326 (1846). Considering the record in its entirety, it clearly appears that Arthur J. Gregory committed a fraud upon his former spouse, Louise Gregory, and upon the divorce court. In our opinion, the trial court’s findings that the conveyance by Arthur J. Gregory was made in good faith and without intent to defraud are against the great weight and preponderance of the credible evidence.

We next consider appellee’s contention that he is entitled to the protection of a bona fide purchaser.

There was evidence before the trial court from which it could have determined, as a matter of fact, that appellee paid a valuable consideration for the interest of Arthur J. Gregory. Both appellee and his brother, Arthur J. Gregory, testified that at the time the deed was executed, appellee paid his brother $2,000.00 in cash and executed a note to his brother in the principal amount of $9,436.57. Appellee also assumed the balance due on the first lien indebtedness. A cash receipt for $2,000.00 signed by Arthur J. Gregory and the $9,436.57 note signed by appellee, both dated January 2, 1970, were received in evidence. Appellants direct our attention to the “flimsy” nature of the evidence pertaining to this transaction, pointing to the lack of evidence as to the source of the $2,000.00 payment and as to its disposition by Arthur J. Gregory. However, viewing the record as a whole we cannot say that the evidence was factually insufficient to support the trial court’s finding of valuable consideration. Even aside from the cash payment and note, the assumption of the outstanding indebtedness to a third party under the terms of the conveyance constituted a sufficient basis for the court to have determined that a valuable consideration was paid by appellee to Arthur J. Gregory for such conveyance. Shaw v. Warren, 68 S.W.2d 588, 590 (Tex.Civ.App. — Eastland, 1933, no writ).

We now consider the court’s finding that appellee’s purchase was without notice of his brother’s fraudulent intent. If a grantee has knowledge of his grantor’s intent to delay, hinder or defraud creditors the conveyance is void as to such creditors even though a valuable consideration has been paid. Glenney v. Crane, 352 S.W.2d 773, 775 (Tex.Civ.App. — Houston 1961, writ ref’d n. r. e.).

We must in this connection determine whether the pendency of the divorce proceedings constitutes constructive notice to appellee that Louise Gregory was a potential creditor or “interested person” within the meaning of Section 24.02, Tex.Bus. & Com.Code, as to the separate property of her husband, Arthur J. Gregory.

In Fannin Bank v. Blystone, 417 S.W.2d 502 (Tex.Civ.App. — Waco, 1967, writ ref’d n. r. e., 424 S.W.2d 626 (Tex.), a husband, during pendency of a divorce action and after he had been enjoined from encumbering or disposing of property, had executed a deed of trust on unimproved, non-homestead community realty. Article 4634, Vernon’s Annotated Civil Statutes, then in effect, provided that the husband’s alienation pending divorce was void if made “with a fraudulent view of injuring the rights of the wife.” The court of civil appeals held that by virtue of the statute the lis pendens doctrine was applicable to encumbrances and conveyances of the husband pending divorce and that the purchaser was charged with constructive notice of the pending divorce action. The Texas Supreme Court in per curiam opinion refusing application for writ of error, n. r. e., held that there was evidence supporting the trial court’s finding that the purchaser had notice of the wife’s rights and that it was therefore unnecessary for the intermediate court to have decided whether the pendency of the divorce action rendered compliance with Article 6640, Tex.Rev.Civ.Stat.Ann., the lis pendens statute, unnecessary. Thus, the effect of Article 4634, now Section 3.57 of the Texas Family Code, as a lis pendens notice has not been finally decided by our highest court. See McKnight, Matrimonial Property, 22 Southwestern Law Journal 129, 138 (1968); Groce, 22 Baylor Law Review 135 (1970); Benn v. Security Realty & Development Co., 54 S.W.2d 146, 150 (Tex.Civ.App. — Beaumont, 1932, writ ref’d). Section 3.57 of the Texas Family Code pertains to disposition of community property pendente lite. Under the facts present in the instant case we hold that the mere pendency of the divorce action was not constructive notice to appellee of the rights of Louise Gregory, the former wife of Arthur J. Gregory, with respect to her husband’s separate property.

We also hold that the trial court’s finding that appellee was without actual notice of his grantor’s fraudulent intent has evidentiary support and is not against the great weight and preponderance of the evidence.

Appellee testified by deposition that he had bought the property from his brother in order to help his brother financially and also for investment purposes. He stated he was not aware of his brother’s involvement in the divorce proceedings and wasn’t sure when he first learned about a divorce, whether it was in 1970 or 1971. He did not know why the deed had not been recorded until 1971. He testified that this was the only land investment he had ever made other than the purchase of his own homestead; that his brother had set the amount of the purchase price and he had given his brother $2,000.00 in cash and had taken up the payments on the first lien note. He testified he had paid the interest on the note annually, was leasing this property through his brother, and had received one rental payment.

Arthur J. Gregory testified that he had a normal blood relationship with his brother and at various times since 1948 had borrowed money from him. The interest in question was the only property he had ever sold to his brother. He testified that he had first told his brother about the divorce proceedings with his wife, Louise Gregory, in the latter part of 1971 after the divorce had taken place.

The trial court was entitled to accept this testimony as credible evidence that appellee was without actual knowledge of the pend-ency of the divorce proceeding and of the rights of the said Louise Gregory with respect thereto at the time of his acquisition of the interest of his brother, Arthur J. Gregory. There is no evidence in the record indicating that appellee was placed on actual notice of such matters, either prior to January 2, 1970, the date indicated on the face of the deed, or January 14, 1971, the date when the deed was filed for record. Upon the state of the record we cannot say that the trial court erred in its finding that appellee occupied the status of a bona fide purchaser for value without notice.

In their points of error nine, ten and twenty-two appellants assert error by the trial court in sustaining appellee’s objections to certain questions and interrogatories addressed to Arthur J. Gregory. We have reviewed the evidence adduced upon appellants’ bills of exceptions with respect to these matters and in accordance with our determination of the evidentiary matters above, we perceive no harm resulting to appellants from the trial court’s refusal to consider the excluded evidence. Rule 434, Texas Rules of Civil Procedure.

In appellants’ point of error twenty-three they assert that the findings of fact and conclusions of law filed by the court were not actually “found” as required by Rule 296, Texas Rules of Civil Procedure. We are also of the opinion that such error, if any, is harmless since in the absence of express findings we must imply findings in support of the judgment. We also deny appellants’ point of error twenty-four wherein they generally assert they were deprived of a fair and impartial trial before the court.

Affirmed.


author: BARROW, Chief Justice.

text:
    Henry SEALE, Appellant, v. B. D. HUDGENS, Appellee.
    No. 15557.
    Court of Civil Appeals of Texas, San Antonio.
    June 9, 1976.
    Rehearing Denied July 7, 1976.
    Don W. Davis, Irion, Cain, Magee & Davis, Dallas, for appellant.
    John J. Pichinson, Henry E. Bower, Corpus Christi, for appellee.
   BARROW, Chief Justice.

Appellant has perfected his appeal from an order overruling his plea of privilege after a non-jury hearing.

Appellee brought this suit in Guadalupe County seeking to recover from appellant, a resident of Dallas County, the sum of $52,-090.81 being the unpaid principal and interest on two notes executed by appellant, which were paid by appellee as guarantor. Venue was sustained in Guadalupe County under Sub. 5 of Art. 1995, Tex.Rev.Civ.Stat. Ann., upon appellant’s promise in writing to pay the notes at the offices of the respective payee banks which are located in Guadalupe County. Both notes were endorsed by appellee; however, they were both assigned to Traders Oil & Royalty, a limited partnership, with appellee as general partner.

Appellant urges by his single point of error that the trial court erred in overruling his plea of privilege in that there is no' evidence that he contracted in writing to reimburse the guarantor in Guadalupe County. The question before us is whether the guarantor, after having paid the indebtedness, may sue upon the debtor’s written obligation to pay the notes in Guadalupe County.

In Fox v. Kroeger, 119 Tex. 511, 35 S.W.2d 679 (1931), the Supreme Court held that where the surety pays the debt of the principal, he may elect to either bring an action on an assumpsit or prosecute an action on the very debt itself. It was held that in either event he stands in the shoes of the original creditor as to any securities and rights of priority. See also La-Rey, Inc. v. Kowalski, 433 S.W.2d 530 (Tex.Civ.App. — San Antonio 1968, no writ). Section 3.415(e) of the Texas Business & Commerce Code provides that an accommodation party who pays an instrument has a right of recourse on the Instrument against the accommodated party.

A review of appellee’s petition discloses that he was suing on the notes executed by appellant which were paid by ap-pellee as an accommodation party. By paying the notes, appellee was subrogated to the rights of the banks and stood in the shoes of each. This included the right to rely on appellant’s promises in writing to discharge the notes in Guadalupe County. The trial court did not err in overruling appellant’s plea of privilege.

The judgment is affirmed.

      . The case of Lewis v. Easley, 34 S.W.2d 376 (Tex.Civ.App. — Amarillo 1930, no writ) which is relied upon by appellant, considered only an action on an assumpsit.


author: KEITH, Justice.

text:
    Walter G. COOK, Appellant, v. CITIZENS NATIONAL BANK OF BEAUMONT, Appellee.
    No. 7845.
    Court of Civil Appeals of Texas, Beaumont.
    June 10, 1976.

      Timothy E. Thompson, Fort Worth, for appellant.
    Bill R. Bludsworth, Houston, for appellee.
   KEITH, Justice.

Citizens National Bank of Beaumont brought this suit against the Zobo Corporation as maker of a note and Walter Cook and Patrick Morgan as guarantors on the note. Plaintiff alleged that the note was in default and sought payment for the balance due. Zobo Corporation filed a plea in abatement on the basis that it had filed for an “Arrangement” under Chapter XI of the Bankruptcy Act. The “arrangement” is still pending in federal court and no final decree has yet been entered.

Plaintiff Bank then moved to sever the action against Zobo from Cook and Morgan, which motion was objected to by Cook on the grounds that trial could not proceed without joinder of the original maker of the note. The trial court severed the action against Zobo and proceeded with the cause against Cook and Morgan. The lower court then rendered summary judgment against Cook and Morgan, jointly and severally, for the balance due on the note. It is from this order of severance and summary judgment that the defendant Cook, but not Morgan, appeals. We reverse the judgment of the trial court and remand the cause for retrial. We will refer to the parties as they were in the lower court.

The guaranty agreement provides in relevant part:

“Whenever any indebtedness guaranteed hereunder shall become due and remain unpaid, the Guarantors, jointly and severally, will, on demand, and without further notice of dishonor ... or of Borrower’s default, pay the amount due thereon to the Bank, . . . such payment to be applied to the indebtedness of the Borrower . . . and it shall not be necessary for the bank . to first institute suit or exhaust its remedies against the Borrower .
“. . . Guarantors hereby waive presentment for payment, notice of nonpayment, protest and notice thereof and diligence in bringing suit against Borrower . . . . It is agreed that the liability of each of the Guarantors for the payment of the indebtedness shall be primary and not secondary, and that suit may be brought against the Guarantors, jointly and severally, and against any one or more of them, less than all, without impairing the rights of the Bank against the other Guarantors .
“. . . The liability of any Guarantor shall not be impaired, reduced or affected by the fact that the indebtedness at any time exceeds the amount above specified as the extent of Guarantor’s liability . . . or by the death, insolvency, bankruptcy, incapacity or disability . . .of Borrower or of any other Guarantor whether now existing or hereafter occurring.”

Defendant’s first point of error is that the trial court erred in granting the severance between himself and the original borrower, Zobo Corporation, because Tex.R. Civ.P. 31 requires joinder of the first obli-gor before a guarantor can be sued on the debt. It is plaintiff’s position that Rule 31 and related statutes do not apply when a guarantor has become primarily liable by contract on the debt. It asserts that defendant has become primarily liable because of the language in the guarantee agreement.

Tex.R.Civ.P. 31 states that “[n]o surety shall be sued unless his principal is joined with him, or unless a judgment has previously been rendered against his principal, except in cases otherwise provided for in the law and these rules.” Other laws which govern guaranty cases include Tex.Rev.Civ. Stat.Ann. art. 1986 and art. 1987 (1964).

Art. 1986 provides:

“The acceptor of a bill of exchange, or a principal obligor in a contract, may be sued either alone or jointly with any other party who may be liable thereon; but no judgment shall be rendered against a party not primarily liable on such bill or other contract, unless judgment be also rendered against such acceptor or other principal obligor, except where the plaintiff may discontinue his suit against such principal obligor as hereinafter provided.”

Art. 1987 states:

“The assignor, indorser, guarantor and surety upon a contract, and the drawer of a bill which has been accepted, may be sued without suing the maker, acceptor or other principal obligor, when the principal obligor resides beyond the limits of the State, or where he cannot be reached by the ordinary process of the law, or when his residence is unknown and cannot be ascertained by the use of reasonable diligence, or when he is dead, or actually or notoriously insolvent.”

We first begin with the proposition that a guaranty is “ ‘an undertaking by one person to be answerable for the payment of some debt or the performance of some contract or duty by another person, who himself remains liable.’ Wood v. Canfield Paper Co., 117 Tex. 399, 5 S.W.2d 748, 749 (1928) (emphasis supplied); Coleman Furniture Corporation v. Lieurance, 405 S.W.2d 646, 647 (Tex.Civ.App. — Amarillo 1966, writ ref’d n. r. e.). While there is a notable distinction between a guarantor and a surety, this distinction becomes blurred almost to the point of nonexistence when the guarantor becomes primarily liable for the debt. Finger Contract Supply Company v. Webb, 438 S.W.2d 112, 114 (Tex.Civ.App. — Houston [14th] 1969), rev’d on other grounds, 447 S.W.2d 906 (Tex.1969); 53 A.L.R.2d 522, 525 (1957) and cases therein; see also Tex.Bus. & Comm.Code Ann. § 34.01 (1968).

Irrespective of nomenclature, one looks to the nature of the obligation to determine the classification of resulting rights and duties of the parties. Wood v. Canfield Paper Co., supra (5 S.W.2d at 750); Diamond Paint Company of Houston v. Embry, 525 S.W.2d 529, 532 (Tex.Civ.App.— Houston [14th] 1975, writ ref’d n. r. e.). All language of a guaranty agreement is to be given effect when possible, and all rights thereunder are to be determined by the language of the contract. Mid-States General Agency, Inc. v. Bank of Texas, 450 S.W.2d 428, 431 (Tex.Civ.App. — Houston [1st] 1970, writ ref’d n. r. e.).

But construction of the above statutes, rules and principles has not produced uniformity of judicial decisions in this State. Based upon the principle that contract language is to be given primary effect as far as possible, several cases have enunciated the rule, with minor variations in phraseology, that a guarantor who unconditionally guarantees payment on a debt becomes a primary obligor and may be held liable without joinder of the original borrower. See, e. g., Rice v. Travelers Express Co., 407 S.W.2d 534 (Tex.Civ.App. — Houston 1966, no writ); McGhee v. Wynnewood State Bank, 297 S.W.2d 876 (Tex.Civ.App. — Dallas 1956, writ ref’d n. r. e.); Mid-States General Agency, Inc. v. Bank of Texas, supra; Finger Supply Contract Company v. Webb, supra; and Skyline Furniture, Inc. v. Gifford, 433 S.W.2d 950 (Tex.Civ.App. — El Paso 1968, no writ).

But a different conclusion was reached in the dominant case in this area, and the only Supreme Court case which we have found— Wood v. Canfield Paper Co., supra (5 S.W.2d 748). There, the paper company instituted suit against Wood, the guarantor of a loan which the paper company had made to another corporation — the original borrower not being made a party to the suit. Wood had unconditionally guaranteed the note up to the limits of the amount borrowed. Wood demurred to the pleadings on the basis that the initial borrower should be made a party to the suit; the demurrer being overruled by the trial court. In certifying the correctness of this action to the Supreme Court, the Court of Civil Appeals noted that there was no excuse offered as to why the original borrower was not made a party nor was there an allegation that a judgment had first been obtained against it (as required in what is now Tex.R.Civ.P. 31).

The Court discussed in detail the statutes involved which are also before this court. In certifying the question, the Court of Civil Appeals said that “ ‘the statutes are plain and unambiguous, applying to guarantors generally without any distinction between absolute and conditional guarantors. In other words, since the statutes seem to us plainly to refer to all contracts of guaranty alike without any distinction between absolute and conditional guaranties, we are inclined to the opinion that the courts are not warranted in reading into them, as it were, the distinction made by the decisions . .’ ” Wood v. Canfield Paper Co., supra (5 S.W.2d at 749, emphasis supplied). The Supreme Court recognized the plain terms of the statutes as stated by the intermediate court and held that “[w]e do not find in any case presented, or with which we are otherwise familiar, warrant for denying to a ‘guarantor’ (such as Wood) the substantial benefits given in the words of the statute [meaning the present art. 1987] . .” Id. at 753. In referring to art. 6336 (now Rule 31), the Court said that:

“The Legislature had the right thus to ignore distinctions in fact and to rest the procedural statute upon arbitrary selection. That situation renders unimportant, so far as the present case is concerned, most of the discussion to be found in text-books and opinions classifying guarantors into those who are such ‘absolutely’ and those who are such ‘conditionally.’ ” Id. at 750.

See also, 21 Tex.Jur.2d Guaranty §§ 61-62 (1961 and 1975 Supp.).

The Court then ruled that the trial court should have sustained the defendant’s demurrer and joined the original borrower in the suit regardless of whether he was an absolute or conditional guarantor. This holding has continuing vitality. We have found no subsequent Supreme Court opinion which is in conflict with, or has modified, the holding in Wood v. Canfield Paper Co., supra. It is worthy of notation that none of the cases cited to support plaintiff’s position discussed Wood. Regardless of the isolation which has been accorded Wood, these cases also appear distinguishable from the Wood decision and the case at bar.

In Mid-States General Agency, Inc. v. Bank of Texas, supra, 450 S.W.2d 428, the court apparently placed primary reliance upon the wording of the guaranty agreement. But the suit was filed jointly against the guarantor and the original borrower. There was no severance of these defendants, and there is no indication from the opinion that the statutes now before us were injected into the case. In Rice v. Travelers Express Co., supra (407 S.W.2d 534), the court held that the lender did not have to show that the debt could not be collected from the original obligor before suing the guarantor alone. But there, the guarantors were the sole owners of the corporation which made the original loan— thus there was no issue of the rights of a “third party” as in our case. And, again, there was no issue of severance by the trial court nor were the statutes relating to this specific question made an issue, as far as can be determined from the opinion.

McGhee v. Wynnewood State Bank, supra (297 S.W.2d 876), makes clear that the original borrower had already defaulted when the suit was brought against the guarantor. But the important distinction is that the case involved one of the exceptions enumerated in art. 1987, i. e., that one of the parties could not be located “by the use of reasonable diligence.” That court further seemed to recognize the mandate of art. 1987 when it said: “Art. 1987, Vernon’s Ann.Civ.St. required that the principal obli-gor be joined as a party to this suit. Such statute, however, does not require that judgment be recovered against the primary or principal obligor.” Id. at 883 (emphasis supplied). We agree that a judgment does not have to be rendered against the primary borrower prior to recovery from the guarantor, but this does not mean that the borrower does not have to at least be made a party to the suit against the guarantor within the contemplation of the statutes.

In the two remaining cases, Skyline Furniture, Inc. v. Gifford, supra (433 S.W.2d 950), and Finger Contract Supply Company v. Webb, supra (438 S.W.2d 112), there again is no discussion of Wood v. Canfield Paper Co., supra, nor of the applicable statutes. We cannot speculate as to what effect, if any, the injection of these elements would have had on those cases. Both cases merely restated the rule that the guarantor was primarily liable for the debt and could be sued by himself without any elucidation thereon.

The above cases have placed primary reliance upon the decisions of Cullum v. Commercial Credit Co., 134 S.W.2d 822 (Tex.Civ. App.—Amarillo 1989, no writ), and Ganado Land Co. v. Smith, 290 S.W. 920 (Tex.Civ.App.—Galveston 1927, writ ref’d). Smith certainly should not be dispositive since it was rendered a year before the Wood case and it involved a borrower who had been adjudged a bankrupt—which differs significantly from our case. Further, there is no indication from the opinion that this was in the context of one of the exceptions to art. 1987, i. e., “actually or notoriously insolvent.” Neither was mention made of Tex. B.Civ.P. 31 (then art. 6386). Gullum held that the guaranty was unconditional and that according to the terms of the original note, the guarantor was bound on the debt when the borrower defaulted. There was no issue of severance and no discussion of the statutes or Wood.

As noted earlier, Wood v. Canfield Paper Co., supra, has seldom been cited since its inception in 1928, but it was discussed in Moore v. Downie Bros. Circus, 164 S.W.2d 420 (Tex.Civ.App.—Fort Worth 1942, no writ). There, the guarantor was sued without joinder of the principal obligor (although both entities were partners and brothers in the circus adventure). In ruling on this specific point, the court distinguished the facts of Wood and noted that the guaranty in Wood involved a party who was guaranteeing payment by a third party, much like the case at bar. It recited the rules and statutes, which have been previously mentioned, and ruled against the defendant’s position, saying that the written contract of guaranty was pleaded and introduced and that it contained language that the guarantor could be sued without recourse to the principal borrower. But, as if the court were unsure of this result (e. g., “If we correctly understand that opinion [Wood] . . . ” Id. at 422), the court further stated that the principal obligor came within an exception to art. 1987 since he could not be located and was presumably a resident of another state. Id. at 423. It is noted here that the case has a no writ history.

While the obligations of parties are to be determined from the language of a contract, we cannot ignore the principle that the contract itself may not impair the validity or force of any law and the courts will not assist in the enforcement of such a contract. Woolsey v. Panhandle Refining Co., 131 Tex. 449, 116 S.W.2d 675, 678 (1938); Morrison v. City of Fort Worth, 138 Tex. 10, 155 S.W.2d 908, 909 (1941).

It is concluded that while there are cases to the contrary, Wood v. Canfield Paper Co., supra, remains dispositive on the question of whether the joinder of the principal borrower is necessary before suit can be brought solely against the guarantor and that Wood answers the question in the affirmative.

Plaintiff alternatively asserts that if joinder is required, then an exception exists under art. 1987, i. e., that Zobo Corporation is “actually or notoriously insolvent.” Prior to the filing of this lawsuit, the corporation filed in federal court for an “arrangement” under Chapter XI of the Bankruptcy Act, 11 U.S.C.A. §§ 701-799 (1970). In its petition Zobo alleged only inability “to pay its debts as they mature.” This is the alternative basis for a Chapter XI proceeding—the other being “insolvent.” 11 U.S.C.A. § 723 (1970). Under its Chapter XI exhibits, Zobo’s financial data shows it to have total assets of $4,600,147.13 and total liabilities of $2,029,400.69.

A person or other entity is insolvent if “the aggregate of his property shall not at a fair valuation be sufficient in amount to pay his debts.” 11 U.S.C.A. § 1(19) (1970); Farmers Bank of Clinton, Missouri v. Julian, 383 F.2d 314 (8th Cir. 1967); Arst v. First National Bank and Trust Co. of Salina, 211 Kan. 758, 508 P.2d 520 (1973).

We note here that Zobo is a “debtor in possession” and thus entitled to run its business as usual under court supervision. See 11 U.S.C.A. § 742 (1970). The bankruptcy court has enjoined further action by a creditor, etc., until a final determination has been made by that court. But it is questionable whether this prevents a party from being made a party to a suit. It has been held that being a “debtor in possession” under Chapter XI does not preclude a party from bringing a suit against a corporation alleging breach of contract, and seeking damages thereunder. See, e. g., Zeidler v. Astrosystems, Inc., 39 A.D.2d 740, 331 N.Y. S.2d 985, 987 (1972). “The filing of an arrangement petition under Chapter XI does not divest the debtor in possession of its contractual rights, but it likewise does not provide a blanket exemption from contractual obligations.” Schokbeton Industries, Inc. v. Schokbeton Products Corp., 466 F.2d 171, 177 (5th Cir. 1972).

Thus we are not concerned here with an entity which has been adjudged a bankrupt under some other applicable sections of the Bankruptcy Act. See, e. g., Spillyards v. Ferris Brick Company, 390 S.W.2d 837 (Tex.Civ.App. — Waco 1965, no writ), and Young v. J. F. Zimmerman & Sons, Inc., 434 S.W.2d 926 (Tex.Civ.App. — Waco 1968, writ dism’d).

The fact that a corporation may have difficulty in paying its financial obligations does not relieve it from its liabilities nor prevent it from being sued. In construing the term “insolvency” within the meaning of what is now art. 1987, the Supreme Court of this State has said:

“ . . . Hence we think that it cannot be said that a principal is insolvent, within the meaning of that statute [now art. 1987], when any part of the debt can be made by execution against him. Such is the construction given to similar statutes by other courts. . . . When a trader is unable to meet his obligations in the regular course of business, he is technically said to be insolvent. Should we apply that meaning to our statute, the indorsee would, in some cases, be excused from suing the maker of the note, although he might have ample property to satisfy an execution against him. . It cannot be said that a debtor is insolvent, within the meaning, of our law, as to his creditor, when he holds property against which the creditor may enforce a lien for the payment of the debt.” Smith v. Ojerhoim, 93 Tex. 35, 53 S.W. 341, 341-342 (1899).

Accord, see Texas Baptist University v. Patton, 145 S.W. 1063 (Tex.Civ.App. — Dallas 1912, no writ).

Under the record which we review, we hold that Zobo Corporation was not “actually or notoriously insolvent” within the meaning of art. 1987. With assets almost twice as large as its liabilities, it should not be insulated against being made a party to a suit to enforce an obligation which it originally incurred voluntarily. Defendant’s Point of Error No. 1 is sustained.

Having found reversible error, we find it unnecessary to consider the remaining point of error asserted by defendant.

The judgment of the trial court is REVERSED and the cause is REMANDED to that court for a new trial.

REVERSED and REMANDED.

STEPHENSON, J., not participating.

      . See 27 Tex.Jur.2d Guaranty § 15 (1961 and 1975 Supp.) and cases cited therein.

      . These are the only two cases cited by the plaintiff to support its position.

      . The numbering of the statutes in Wood has been changed: Art. 6336 became art. 6251 and eventually was made Tex.R.Civ.P. 31. Art. 6337 became art. 6252 and is now Tex.Bus. & Comm.Code § 34.01 (which now incorporates definitional changes). Art. 1842 is presently art. 1986, while art. 1843 has become art. 1987.

      . We adhere to the admonition expressed several years ago by Justice Norvell: “[T]hese cases have never been overruled, but likewise they have not been cited in recent years. Because of this latter circumstance, the Court of Civil Appeals was of the opinion that these ancient cases, like old soldiers, had just faded away. Perhaps a reexamination of the holdings of the cases mentioned is called for, but [the cases] are decisions of this Court and unless there is some good reason for overruling them, they should not be disregarded.” Reed v. Buck, 370 S.W.2d 867, 870-871 (Tex.1963).


author: DUNAGAN, Chief Justice.

text:
    Annie Lula WICKWARE et al., Appellants, v. Ronald Alan SESSION et al., Appellees.
    No. 859.
    Court of Civil Appeals of Texas, Tyler.
    June 10, 1976.
    Rehearing Denied July 8, 1976.

      R. A. Neathery, Dallas, John S. Ament, Jacksonville, Thomas A. Kendall, Rusk, for appellants.
    Robert A. von Doenhoff, Charles R. Holcomb, Cox & Holcomb, Rusk, for appellees.
   DUNAGAN, Chief Justice.

This case involves the legitimation of children and their right to inherit from their father.

Ronald and Gloria Session instituted this Trespass to Try Title action against Annie Lula Wickware and other named persons claiming title to 117 acres in Cherokee County, Texas, through Aaron Session, deceased. The Trial Court, without the aid of a jury, made the following findings: that Aaron Session held title to this property at the time of his death; that a 1967 California proceeding determined that Ronald and Gloria Session were the children of Aaron Session; that California law permits an illegitimate child to inherit from a person who makes a written acknowledgment of paternity; that Aaron Session had executed such an instrument; and that Ronald and Gloria were the lawful children and only heirs of Aaron Session.

The Trial Court’s conclusions of law were as follows: that the law of California determines the status of Ronald and Gloria as the children of Aaron Session; that the findings in this regard of the California Court were entitled to full faith and credit in Texas courts; and that Ronald and Gloria each inherited an undivided one-half interest in the 117 acres and were entitled to possession of that property. The Trial Court rendered judgment that Ronald and Gloria recover title and possession of the described property from the named defendants.

The defendants appealed to this Court on 15 points of error. Appellees argue that the Trial Court’s judgment may be sustained on any one of three bases, to-wit: (1) the effect of Aaron Session’s acknowledgment of paternity under Chapter 13 of the Texas Family Code; (2) the California Court’s determination of the status of Ronald and Gloria and the inheritance rights of legitimated children under Texas law; or (3) the rights of illegitimate children under the Equal Protection clause of the 14th Amendment to the United States Constitution. We affirm the Trial Court’s judgment on the basis of the California Court’s determination and the operation of Texas law thereon.

Ronald and Gloria were born in Alameda County, California, on August 17,1952, and September 30, 1953, respectively. Their mother, Joanna Barksdale, testified that although she married a Mr. Barksdale in 1944, she began living with Aaron Session in 1951 and continued to live with him for some time after the birth of Gloria Session. The acknowledgment of paternity was signed by Aaron Session on February 18, 1957, pursuant to a suit instituted by Joanna Barksdale in California for the support of Ronald and Gloria. Aaron Session died intestate on January 13, 1967, in Alameda County, California. On December 18, 1967, Mrs. Barksdale, as the administratrix of Aaron Session’s estate and the Guardian of Ronald and Gloria, obtained an Order assigning the decedent’s estate to Ronald and Gloria. The Order’s description of the estate did not mention the Texas realty which is the subject of this suit. That Order designated Ronald and Gloria as the “duly acknowledged children of decedent.”

Appellants attack the Trial Court’s treatment of the 1967 California proceeding on several grounds which may be stated thus-iy:

I.Was the certified and authenticated copy of the California proceeding admissible?
II.Was the law upon which the California proceeding was based properly before the Trial Court?
III.What effect can the California proceeding have upon Texas realty?

We will discuss these issues in that order.

I. Admissibility of the California Proceeding

Appellants contend that the copy of the 1967 California proceeding was inadmissible because appellees failed to comply with Section 3, the Notice to Adverse Party requirement, of Tex.Rev.Civ.Stat.Ann. art. 3731a (Supp.1975). Article 3731a is the codification of the “Official Written Statements” exception to the Hearsay rule. See 2 McCormick and Ray, Evidence, Section 1293 (1956). Section 2 of this Article provides that any written instrument which may be filed by an officer or clerk of another state in the performance of the functions of his office, shall, so far as relevant, be admitted in Texas courts. Section 3 of the Article requires the delivery of a copy of the writing to the adverse party a reasonable time before trial, unless in the opinion of the trial court the adverse party was not unfairly surprised by the failure to deliver such copy.

While appellants admit that they received a copy' of the proceeding 5 days before trial, they argue that this was not a reasonable titee because appellees filed this suit in 1969. Appellants also state that they were unfairly surprised.

Even if 5 days was not a reasonable time, appellants’ mere statement of unfair surprise will not exclude an otherwise admissible instrument. Unfair surprise under Article 3731a must be shown. Viera v. State, 493 S.W.2d 160 (Tex.Cr.App.1973); Cooley v. Texas Dept. Public Safety, 348 S.W.2d 267, 269 (Tex.Civ.App. — Fort Worth 1961, n. w. h.). Moreover, appellants made no request for a continuance or for leave to withdraw their announcement of “ready.” See Greene v. Watts, 332 S.W.2d 419, 425 (Tex.Civ.App. — Dallas 1960, n. w. h.). The copy of the California Court’s Order assigning part of Aaron Session’s estate to Ronald and Gloria was properly admitted.

II. Judicial Notice of the California Legitimation Statute

The Trial Court concluded, and we agree, that the California Court made a finding regarding the status of Ronald and Gloria. That finding was that Ronald and Gloria were the duly acknowledged children of Aaron Session; i. e. that they had been legitimated pursuant to California law. While appellants do not attack the substance of either the California Court’s finding or the California statute upon which the finding was based, they do contend that the Trial Court erred in taking judicial notice of that statute, to-wit: California Probate Code Section 255. Appellants first contend that appellees’ failure to plead Section 255 precluded the Trial Court’s judicial knowledge thereof under Tex.R.Civ.P. 184a.

Prior to the adoption of Rule 184a in 1943, the common law regarding judicial notice of the laws of a sister state required the pleading and proof of these laws. See Lamb v. Hardy, 109 Tex. 414, 211 S.W. 445 (1919). Rule 184a, however, eliminated the necessity of pleading the law of the sister state. Thomas, Proof of Foreign Law in Texas, 25 Sw.L.J. 554, 559 (1971); 8 Texas B.J. 37, Advisory Opinions of Subcommittee on Interpretation of the Texas Rules of Practice and Procedure in Civil Cases (1945). Appellants rely on John Hancock Mutual Life Ins. Co. v. Stanley, 215 S.W.2d 416, 423 (Tex.Civ.App. — Fort Worth 1948, n. w. h.) to support their contention that pleading and proof of the statutory laws of a sister state are pre-requisites to the taking of judicial notice thereof. That case, however, pointed out the non-compliance with Rule 184a and then held that the common law rule controlled. 30 Texas L.Rev. 253 (1951).

Rule 184a requires a motion that the judge take judicial notice of a law of another state, sufficient information to enable the judge to comply with the request and such notice, if any, as the judge may deem necessary, to enable the adverse party fairly to prepare to meet the request. Tex.R. Civ.P. 184a. It is undisputed that appellees requested that the Trial Court take judicial notice of California Probate Code Section 255. Also, appellees furnished the Trial Court with a photocopy of Section 255 which was stipulated by appellants to be true and correct. Appellants argue, however, that they were not given proper notice.

Although appellants objected to the lack of proper notice when appellees requested the Trial Court to take judicial notice of California Probate Code Section 255, appellants did not request a recess or continuance during which they could prepare a defense to appellees’ motion. The Trial Court’s offer to appellants of a 10-day recess for the production of a proper copy of the California statute was refused by appellants. We do not believe that appellants were denied an opportunity to meet the request for judicial notice or that the Trial Court erred in taking judicial notice of California Probate Code Section 255. Utica Mutual Ins. Co. v. Bennett, 492 S.W.2d 659, 664 (Tex.Civ.App. — Houston, 1st Dist., 1973, n. w. h.); Gard v. Gard, 244 S.W.2d 884, 887 (Tex.Civ.App. — El Paso 1951, n. w. h.).

III. The Effect of the California Court’s Determination upon Texas Realty

The Trial Court gave full faith and credit to the California Court’s determination that Ronald and Gloria were the “duly acknowledged” or legitimated children of Aaron Session. Appellants contend that the California determination can have no effect upon Texas real estate. This contention involves Conflict of Laws principles.

Whether a person must be legitimate in order to inherit an interest in land upon intestacy is determined by the law of the situs. Pilgrim v. Griffin, 237 S.W.2d 448, 450 (Tex.Civ.App. — El Paso 1950, writ ref’d n. r. e.); Restatement (Second) of Conflict of Laws, Section 237(1) (1971). Whether a person is legitimate is determined by the law of the state with the most significant relationship with that person. Restatement (Second) of Conflict of Laws, Section 287(1) (1971). This is usually the state where the child or the parent was domiciled at the time of the act creating the status of legitimacy. Boudreaux v. Taylor, 353 S.W.2d 901, 903 (Tex.Civ.App. — Waco 1962, n. w. h.); Pilgrim v. Griffin, supra, 237 S.W.2d at 451; Restatement (Second) of Conflict of Laws, Section 287(2) (1971). The courts of the situs will usually recognize and uphold the determination of a person’s status by a court of his domicile. Martinez v. Gutierrez, 66 S.W.2d 678, 681 (Tex.Com.App.1933, holding approved).

It is undisputed that Ronald and Gloria were born in California and resided there when the California Court determined that they were the duly acknowledged children of Aaron Session. Joanna Barksdale and Aaron Session were residents of California before and after the birth of Ronald and Gloria. The record shows that Joanna Barksdale is still a resident of California and that Aaron Session resided there until his death. We conclude that the law of California determines the status of Ronald and Gloria. We further conclude that the Trial Court did not err in recognizing and upholding the California Court’s determination of legitimacy.

Appellants do not contend that a person who has been adjudged the child of another cannot inherit real estate from the other. This right seems clear. Tex.Family Code Ann. Section 13.09 (Supp.1975) and Tex.Prob.Code Ann. Section 38 (1956). The Trial Court properly concluded that Ronald and Gloria were entitled to title and possession of the property in question.

Appellants’ final point is that Ronald and Gloria could not be the legitimate children of Aaron Session since they were born during the marriage of their mother to another man. Appellants rely upon the presumption of legitimacy that attaches to children born during lawful wedlock. Appellants argue that since Ronald and Gloria were never illegitimate, they could not have been legitimated.

This argument is premised upon the disposition of a similar fact situation in Esparza v. Esparza, 382 S.W.2d 162 (Tex.Civ.App. —Corpus Christi 1964, n. w. h.). That case also involved an issue of whether children born during their mother’s marriage to one man could later be legitimated as the children of another man. There, as here, the mother testified unequivocally as to the parentage of the man who was not her lawful husband. That Court held that a wife cannot competently testify as to facts which tend to bastardize her children; the cause was remanded for a determination by competent evidence of whether the mother and the alleged father were the parents of the children. Esparza v. Esparza, supra, at 168.

It is now settled that a spouse can competently testify as to facts which tend to bastardize the children of that spouse. Davis v. Davis, 521 S.W.2d 603, 608 (Tex. 1975). We believe the testimony of Joanna Barksdale was sufficient to support the Trial Court’s finding that Ronald and Gloria were the children of Aaron Session.

All of appellants’ points have been carefully considered and the same are overruled. The judgment of the Trial Court is affirmed.

      . The last-mentioned finding was made “separately,” apparently in reliance upon the written acknowledgment of paternity rather than the Califomia Court’s determination that Ronald and Gloria were the children of Aaron Session.

      . The question of recognition of a foreign status of legitimacy is one of comity and not of constitutional law under the full faith and credit provision. Pilgrim v. Griffin, 237 S.W.2d 448, 450 (Tex.Civ.App. — El Paso 1950, writ ref’d n. r. e.); Annot., 87 A.L.R.2d 1274, 1279 (1963). Nevertheless, courts have stated that full faith and credit was properly accorded to a foreign judgment establishing a particular legitimacy status. See Howells v. Limbeck, 172 Ohio St. 297, 175 N.E.2d 517, 518 (1961).


author: JAMES, Justice.

text:
    Mary Lou JOINER, Individually and as Administratrix of the Estate of H. D. Joiner, Deceased, Appellant, v. David JOYNER, Appellee.
    No. 5545.
    Court of Civil Appeals of Texas, Waco.
    June 10, 1976.
    Rehearing Denied July 1, 1976.
    Leonard E. Choate, Walter F. Clark, Erhard, Cox & Ruebel, Robert C. Cox, Dallas, for appellant.
    Behan & Leech, Paul W. Leech, Grand Prairie, for appellee.
   OPINION

JAMES, Justice.

This is a case wherein the trial court withdrew the cause from the jury and entered judgment as a matter of law in favor of the Defendant-Appellee. We reverse and remand.

Plaintiff-Appellant Mary Lou Joiner, Individually and as the widow of and as Ad-ministratrix of the Estate of Howard D. Joiner, deceased, brought this suit against Defendant-Appellee David Joyner , her deceased husband’s brother, for the alleged wrongful death of her deceased husband.

Plaintiff-Appellant’s pleadings alleged the following matters which are material to her asserted cause of action:

(1) On April 11, 1973, the deceased Howard D. Joiner was gainfully employed by the Defendant David Joyner, doing business as “Dave’s Automotive,” “Dave’s Wrecker Service,” and “Dave’s Wrecker Yard.”

(2) That Defendant had in his employment three (3) or more employees and did not have workmen’s compensation insurance coverage at the time and on the occasion of the deceased’s injuries in question.

(3) On April 11, 1973, the deceased was severely burned when the acetylene torch he was using ignited gas fumes while deceased was dismantling a wrecked automobile belonging to the Defendant.

(4) That at the time and on the occasion in question the Defendant was guilty of the following acts or omissions of negligence, each of which was a proximate cause of the deceased’s injuries, to wit’, in that Defendant failed (a) to provide fireproof clothing for deceased and other employees engaged in dismantling and cutting up wrecked automobiles, (b) to provide proper training for such employees, (c) to give adequate instructions to the deceased and such other employees, (d) to drain the gasoline from the vehicle upon which deceased was working at the time of his injuries, and (e) to provide a fire extinguisher to extinguish any fires.

(5) That the deceased was hospitalized as a result of such injuries from April 11,1973, until his death which occurred on May 13, 1973. That as a result of such hospitalization, the deceased incurred medical and hospital expense to Parkland Hospital, Dallas, Texas, in the amount of $15,493.55.

(6) Alternatively, Plaintiff-Appellant alleged that the deceased was working in Defendant’s place of business, and that Defendant: (a) failed to provide the deceased a safe place in which to work, (b) failed to warn deceased of the presence of gasoline in Defendant’s wrecked cars, (c) failed to drain gasoline from the wrecked cars upon which the deceased was working; and that each of such grounds of negligence was a proximate cause of deceased’s injuries.

(7)Plaintiff-Appellant sued for the medical expenses, pain and suffering, and diminution of deceased’s future earning capacity-

Defendant-Appellee’s pleadings in essence denied that the deceased was an employee; that Defendant owed no duty to furnish fireproof clothing or training to the deceased, but that if Defendant did owe such duty, that failure to so furnish fireproof clothing or training was not negligence; that Defendant was not obligated to be a subscriber to the Workman’s Compensation Act (because he was not at the time employing but two employees); that the deceased was guilty of certain acts of contributory negligence and assumed the risk, and thereby Defendant was not liable. Additionally, Defendant alleged a general denial.

Trial was had to a jury, and immediately after Plaintiff-Appellant rested its case, Defendant-Appellee filed a motion for instructed verdict. The trial court granted Defendant’s motion, withdrew the case from the jury and entered judgment that Plaintiff-Appellant take nothing, holding that Defendant-Appellee was entitled to judgment as a matter of law.

From this judgment Plaintiff-Appellant appeals on three points of error, all of which in effect assert that the Plaintiff’s pleadings and evidence raised material fact issues which should have been submitted to the jury, and that the trial court erred in granting the Defendant’s motion for instructed verdict. We sustain Plaintiff-Appellant’s points of error and accordingly reverse and remand the cause to the trial court for retrial.

Our Supreme Court has laid down the rules which we are obliged to follow in cases wherein the trial court has instructed a verdict, or has withdrawn the case from the jury and entered judgment. It is well settled that it is error to instruct a verdict when the evidence raises any material issue. The evidence must be considered most favorably in favor of the losing party, and a peremptory instruction is warranted only when the evidence is such that no other verdict could have been rendered and the prevailing party was entitled as a matter of law to a judgment. If there is any conflicting evidence, either direct or circumstantial in the record of a probative nature, the case is for the jury. We must accept as true the evidence in the record supporting the losing party’s cause of action or defense as the case may be, disregarding all conflicts and indulging every intendment reasonably deducible from the evidence in favor of the losing party. Stevens v. Karr (1930) 119 Tex. 479, 33 S.W.2d 725; Anglin v. Cisco Mortgage Loan Co. (1940) 135 Tex. 188, 141 S.W.2d 935; Jones v. Nafco Oil and Gas, Inc., (Tex.1964) 380 S.W.2d 570; Constant v. Howe (Tex.1968) 436 S.W.2d 115.

In the case at bar, we have carefully examined the evidence in the light of the foregoing rules, and without detailing same, we are of the opinion that there is evidence of probative value in support of Plaintiff-Appellant’s material allegations. Therefore the trial court should have submitted the cause to the jury. The withdrawal of the case from the jury and entry of judgment for the Defendant was error. We accordingly reverse the trial court’s judgment and remand the cause for retrial.

REVERSED AND REMANDED.

       The Defendant had the spelling of his surname changed from Joiner to Joyner for personal and family reasons.


author: SHANNON, Justice.

text:
    JOHN ROBERTS, INC., Appellant, v. BOOKSTALL, INC., et al., Appellees.
    No. 12,410.
    Court of Civil Appeals of Texas, Austin.
    June 16, 1976.
    Rehearing Denied July 14, 1976.

      Thomas H. Watkins, Watkins, Ledbetter & Ramsey, Austin, for appellant.
    Joseph P. Webber, Long & Evatt, Austin, for appellees.
   SHANNON, Justice.

This is the second appearance of this cause in this Court. Previously, this Court reversed a default judgment entered by the county court at law of Travis County in favor of John Roberts, Incorporated. 517 S.W.2d 451 (Tex.Civ.App.1975, no writ).

With respect to this appeal, appellant, John Roberts, Incorporated, filed suit in the county court at law of Travis County against appellees, Bookstall, Inc., sometimes doing business as the “Giftstall,” and C. A. Austin. Appellant sued on an open account and a promissory note executed by Bookstall, Inc., and guaranteed by Austin. The account and the note originated from appellant’s sale of class rings to Bookstall, Inc. After a jury trial, judgment was entered that appellant take nothing. We will reverse that judgment.

In its trial pleading, appellant stated that in 1970 it began selling merchandise to the Bookstall, Inc., on an open account basis. Appellant took promissory notes at various times from the Bookstall, Inc., which were guaranteed by C. A. Austin, the president of Bookstall, Inc. The promissory notes represented sums allegedly owed appellant at different times on the open account. Appellant claimed that after all appropriate credits were allowed, a $366.50 balance remained unpaid on the current promissory note, and that $1,840.16 represented the outstanding indebtedness on the open account purchases by appellee Bookstall, Inc., from appellant.

In their reply pleading appellees claimed, among other things, that appellant had not given them proper credit for cash payments, for ring commissions, and for rings returned.

The charge contained three special issues. In response to special issue one which inquired as to what sum of money appellees owed on the promissory note, the jury answered “none.” Likewise the jury answered “none” to special issue two which asked what sum of money appellees owed on the open account. The third issue was conditioned upon an affirmative response to either special issue one or two, and accordingly was not answered.

Appellant seeks to overturn the judgment by three points of error. We grant point of error three which contends that the answer of the jury, “none,” to special issue number two was so contrary to the great weight and preponderance of the evidence so as to be manifestly unjust.

Point of error three requires this Court to consider and weigh all of the evidence and to set aside the jury’s verdict and remand the cause for a new trial if this Court concludes that the verdict was so against the great weight and preponderance of the evidence as to be manifestly unjust, regardless of whether the statement of facts contains some “evidence of probative force” in support of the verdict. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), Garwood, The Question of Insufficient Evidence on Appeal, 30 Texas L.Rev. 803 (1952).

We have considered all of the evidence and have concluded that the answer of the jury, “none,” to special issue number two was so contrary to the great weight and preponderance of the evidence so as to be manifestly unjust.

The trial of the case consumed three days and the statement of facts numbers four hundred eighty-nine pages and contains forty exhibits of many sets of computations and complicated accounting statements.

The statement of facts contains much testimony concerning appellant’s accounting procedures and appellees’ inability to understand those procedures. Appellee Austin and his wife testified concerning the payments which they had made to appellant and their “feeling” that appellant had not given them proper credit for all of those payments. During the trial and in the brief appellees’ counsel castigated appellant’s principal witness for a number of admitted accounting errors.

We agree that appellant’s accounting procedures were not very understandable. Also, we can understand that the jury may have refused to believe appellant’s principal witness in light of the accounting errors. Nevertheless, C. A. Austin admitted that of the original indebtedness of $8,284.46, he and the other appellee had paid only about $7,000.00. Austin also conceded that subsequent to the payment of the sum of $7,000.00, Bookstall, Inc., had made additional purchases from appellant. It was within the province of the jury to determine the amount owed by appellees but in view of Austin’s testimony, the jury’s answer of “none” was contrary to the great weight and preponderance of the evidence.

The judgment is reversed and the cause is remanded for another trial.

Reversed and Remanded.