author: WALKER, Presiding Judge. GALBREATH, Judge

text:
    William M. PARKS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 12, 1976.
    Certiorari Denied by Supreme Court Oct. 25, 1976.

      Jerry H. Summers, Chattanooga, for appellant.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, John W. Goza, Jr., and Jerry S. Sloan, Asst. Dist. Attys. Gen., Chattanooga, for appellee.
   OPINION

WALKER, Presiding Judge.

Convicted in Hamilton County Criminal Court of second degree murder of Willie E. Mahaffey and sentenced to ten years in the penitentiary, the appellant, William M. Parks, appeals in error.

The appellant, age 62, was engaged in selling whiskey and on March 2,1975, sold a half-pint of whiskey to the deceased who was cooperating with the Chattanooga police in making the purchase. This resulted in the appellant’s arrest. A few hours later, the deceased, then intoxicated, returned to the appellant’s home and in the bedroom the appellant fatally shot him with a pistol. In addition to the pistol wound in the head, the deceased had two scalp lacerations about one and one-half to two inches in length. His blood alcohol content was .20 grams percent.

Four persons were present when Officer Huggins arrived at the appellant’s house where Mahaffey was still alive. In response to Huggins’ inquiry as to what happened, the appellant replied: “I shot him; I killed the son-of-a-bitch.” He was arrested and given Miranda warnings after which he said he threw the gun outside the front door. The pistol was never found. He was then taken to police headquarters and, after further warning, he signed a waiver of his rights. At that time he declined to make a statement. When Officer Slaughter told him he was just trying to find what happened, the appellant repeated his earlier statement that he shot Mahaffey and threw the gun outside. He declined to answer any other questions although he again repeated his statement.

Testifying in his own defense, the appellant contended the shooting was an accident. He admitted selling Mahaffey a half-pint of whiskey that day but said he did not know he was an undercover agent. By his testimony, he was taking a nap when someone came in shouting, “Get out of that bed, you son-of-a-bitch.” It was dark, he did not have on his glasses and he did not recognize the person. He kept his pistol by the bedside for protection and when he struck the person with it the pistol discharged accidentally. He had known Mahaffey a long time and would not have struck him or shot him if he had known that he was the person in his room. He thought it was an intruder when he struck him. He did not know that Mahaffey had caused his arrest for selling whiskey. He insisted that he struck once with the pistol and that it went off accidentally.

Parks contends the court erred in admitting evidence of his prior crime for selling whiskey. The purpose of this evidence was to show his motive for the murder. By the state’s theory, Mahaffey was responsible for his arrest and Parks’ motive was vengeance for Mahaffey’s deception. Williams v. State, Tenn.Cr.App., 520 S.W.2d 371.

The appellant challenges the admissibility of the photograph of the deceased. His principal complaint, however, is that the court did not grant his special request for instructions on how to consider photographic evidence.

The photograph was admissible to show the scalp wounds as well as the location of the bullet wound and to corroborate the medical testimony. It was properly admissible and not inflammatory. The trial judge did not abuse his discretion in admitting it. Freshwater v. State, 2 Tenn.Cr. App. 314, 453 S.W.2d 446, cert. denied 400 U.S. 840,91 S.Ct. 80, 27 L.Ed.2d 74; Palmer v. State, 1 Tenn.Cr.App. 223, 435 S.W.2d 128. No special instructions were needed.

The appellant says the court erred in admitting his statement on the arrival of the officers to the effect that he had killed Mahaffey. He argues that this was inadmissible because he had not been warned in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

This was a general on-the-scene investigation by Officer Huggins, the first officer to arrive. The investigation was in its earliest stage; four persons were present and no one was arrested or detained. No coercion was involved. The focus of the investigation had not narrowed beyond those four persons there. The statement was admissible. Ballard v. State, 2 Tenn.Cr.App. 431, 454 S.W.2d 193; Suggars v. State, Tenn.Cr.App., 520 S.W.2d 364.

The appellant insists the court erred in allowing testimony that he relied on his right to remain silent.

After his on-the-scene statement, Officer Huggins told him to make no more statements and then warned him properly. After those warnings he told the officer he threw the gun out the front door. At police headquarters he signed a waiver of rights. After first refusing to make a statement he again said he shot Mahaffey and threw the gun outside but then answered no more questions. We find no error.

The appellant was properly warned in accordance with Miranda v. Arizona, supra, before making his statements. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court considered postarrest silence for impeachment purposes. In Braden v. State, Tenn., 534 S.W.2d 657, our Supreme Court considered comment in closing argument that the accused remained silent on his arrest. The rationale of these cases is that post-Miranda silence is too ambiguous to have probative effect.

But here, contrary to the facts of those eases, the appellant’s silence, short-lived, was preceded and followed by highly incriminating statements which removed any ambiguity that may have arisen from his temporary claim of privilege. His subsequent statement constituted a waiver under Miranda. Bowling v. State, 3 Tenn.Cr. App. 176, 458 S.W.2d 639. Similarly, it is not prejudicial for an officer to say that after making a statement or answering a question the one being interrogated refused to make any other statement, since this is merely a comment on the scope of the defendant’s statements and not a reference to the refusal of the defendant to make any statement at all. This is not a case where the accused remained mute or refused to make any statement.

The appellant urges that the court erred in permitting evidence of the deceased’s good reputation for peace and quietude. By his testimony the appellant was a friend of Mahaffey for 20 years and would not have shot him if he had known his identity. If this was erroneously admitted, it was harmless.

The assistant district attorney general’s reference to the appellant’s failure to call witnesses was legitimate argument. Wheeler v. State, 220 Tenn. 155, 415 S.W.2d 121.

Parks contends the instructions on the presumption of malice from the use of a deadly weapon violates the rule in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508. We held to the contrary in Armes v. State, Tenn.Cr.App., 540 S.W.2d 279 (1976). This assignment is overruled. Other special requests were likewise properly denied.

The evidence abundantly sustains the verdict. There is no question that the appellant shot Mahaffey and killed him. The jury did not believe his explanation. The killing with a deadly weapon raised a presumption of malice sufficient to justify the conviction for murder in the second degree. Humphreys v. State, Tenn.Cr.App., 531 S.W.2d 127.

All assignments are overruled and the judgment is affirmed.

TATUM, J., concurs.

GALBREATH, Judge

(dissenting).

The defendant admitted at the time of his arrest, and when he took the witness stand in his defense, that he shot and killed one Willie E. “Junior” Mahaffey. There was evidence that he had illegally sold a half pint of whiskey to Mahaffey a few hours before, for which he had been arrested. It is not shown in the record that the defendant had knowledge of the fact that Mahaffey had been acting in cooperation with the police in making the purchase, but it was the theory of the State that he must have known of the betrayal by his long time acquaintance and customer, since the sale resulting in his arrest was the only one made that day, and that Mahaffey’s duplicity was the motive for the killing.

The defendant’s explanation to the jury was that the slaying was an accident. That in the middle of the afternoon of March 2, 1975, after he had been arrested that morning, he went to sleep on a couch at home. He testified he was abruptly awakened by someone who had entered his home and was shouting at him, “Get out of that bed, you sonofabitch.” He stated he kept a loaded pistol on a chair because he had been robbed a number of times, and that he grabbed the pistol because someone was, as he put it, “coming in on me and hit whoever it was . . . with the gun, and it went off . it was dark . . . (a)nd I stood there a few minutes and he didn’t move, and so I went over and cut the lights on and went back over there to see who it was.” The defendant stated emphatically that if he had known who the intruder was, he would not have reacted as he did.

This 62-year-old appellant made no effort to conceal the fact that he had shot the deceased, and on two occasions told the investigating officers that he had done so. After being adequately advised of his rights as a suspect under the guidelines laid down in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966), he was asked to explain the circumstances of the shooting, and according to testimony of the officer, admitted over objection, the defendant stated he did not want to make any statement at that time. The prejudicial effect of making known to the jury this refusal on the part of the defendant to explain away the natural suspicions under which the investigating police were laboring, knowing the defendant had killed the victim, was illustrated and emphasized by the prosecuting attorney in his summation touching on the incriminating silence of the accused: “ . . . he admitted this to Detective Slaughter within an hour of the same time he admitted this to Officer Huggins. But he wouldn’t tell him anything else. That’s all he wanted to tell him.”

I would hold that it was gross error to permit proof of the refusal of the defendant to explain the circumstances surrounding the shooting at the crucial time he was confronted by policemen obviously bent on seeking evidence against him for use in a criminal prosecution. “It is impermissible,” the United States Supreme Court made clear in its famous footnote 37 to Miranda v. Arizona, supra, “to penalize an individual for exercising his Fifth Amendment privilege when he is undergoing police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.”

Our own Supreme Court has likewise made it clear that proof of silence is not admissible in a situation “where a defendant remains mute or asserts his right to do so when questioned about participating in criminal acts, a silence in the face of accusation or interrogation with respect to crime, from which an inference of guilt may be drawn.” State v. Flanagan, 223 Tenn. 134, 443 S.W.2d 25, 26 (1969).

That there is no tendency on the part of the Courts to recede from the admonition of footnote 37 is evident in quite recent reiterations of the principle by our highest tribunal. In reversing a State conviction where, as here, the prosecution was permitted to prove at trial that the defendant had failed to tell the interrogating police what he related to the jury as his exculpatory version of the facts surrounding the alleged crime:

“In such circumstance, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at_trial.” (Emphasis added) Doyle v. Ohio, 426 U.S. p. 618, 96 S.Ct. p. 2245, 49 L.Ed.2d 91 (1976)

I must profess an inability to follow the rationale of the majority when it sloughs off the admission of proof of the absence of the defendant’s explanation of why he shot the victim as “merely a comment on the scope of the defendant’s statements and not a refusal of the defendant to make any statement at all.” The defendant admitted readily that which was obvious: that he shot the intruder in his home. He was not required at that time, without the guidance of counsel, to go forward and defend himself. It was his failure to explain pretrial why he shot the victim that was so highly prejudicial, and the jury, being human, could not help but view .this failure to explain as prejudicial. It must be an integral concept of Miranda that no accused has to defend himself at any time unless, and until, he chooses to do so by waiving his 5th Amendment privilege not to be a witness. To hold, as apparently the majority does, that because an accused admits obvious facts to the police, then the fact that he does not volunteer other facts making up his defense may be commented upon destroys this privilege completely. Silence can, and often is, particularly when human life has been taken, more condemning than vocal utterances. “For murder, though it have no tongue, will speak with most miraculous organ.”

I would reverse the defendant’s conviction for second degree murder.

Also, I would not approve the trial judge’s admission over objection of a particularly gruesome photograph of the deceased which had little or no probative value or bearing on any factual matter in dispute. This was an extremely close case, and it might well be that if it had not been for the inherently detrimental effect of an unnecessary display of the ugliness of death, the jury would not have convicted the defendant. As it was, the minimum penalty of ten years was fixed by the jury, who could not have regarded the murder as one committed in cold blood, by a criminal seeking revenge on an informer. It was, as aforesaid, the State’s theory that the defendant, who had been a bootlegger for many years, was motivated to kill Mahaffey because his old and trusted customer had turned police informant. This was the justification for admitting proof of the criminal conduct involved in the sale of the whiskey to Mahaf-fey the morning before he was killed. Otherwise, introduction of proof of another crime committed by the defendant would have constituted reversible error. That the proof was relevant because it tended to prove a motive for the later crime brought the otherwise inadmissible evidence under the narrow exceptions making such otherwise incompetent proof admissible. Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523. If the jury had believed the defendant inveigled in some way to have Mahaffey brought to him so that he could be executed for revenge and to prevent his being a witness against the defendant, this would have established the crime as so premeditated and deliberate as to call for the most severe penalty permissible for first degree murder. The fact that the jury could not find justification to view the crime as urged by the State makes it even more probable that they were unduly influenced and prejudiced by the sight of the bloody remains of the defendant as pictured in the exhibit.

Pictures such as the one of the deceased with a bullet hole in his forehead are not admissible when their prejudicial impact overweighs their probative value. Palmer v. State, 1 Tenn.Cr.App. 223, 435 S.W.2d 128 (1968). While the admission of such photographs is within the discretion of the trial judge, it must be demonstrated on appeal that there was some sound reason for the discretionary ruling. The Supreme Court has recently indicated that it is necessary for the record to indicate the basis or rationale for a discretionary ruling adverse to the interests of a defendant in a criminal trial. See Gray v. State, 538 S.W.2d 391 (Tenn.1976). Here, no reason was given for admitting the photograph. The trial judge, in ruling on the objection in which the defense asserted its claim of nonrelevancy or lack of probativity, simply stated that he had viewed the photograph and overruled the objection. No reason at all was given for the ruling. I would suggest that it would be well, in all such instances, for the trial judge to hold a hearing out of the presence of the jury, to determine the admissibility of any evidence which the defense contends may prejudice rights of the accused, and make his ruling at the conclusion of such hearing for the record, setting out the basis therefor, in order that appellate review might be facilitated. I am hard pressed to even guess at the reason for admission of this photograph.

The State contends that there was a dispute as to how many times the deceased contended he struck the victim with the pistol before it discharged. The defendant’s testimony was ambiguous, although he plainly recalled striking the deceased with the pistol. He did not recall clearly whether he hit the victim once, or more than once, and we are not sure whether it makes any difference to either the defense or to the state. The picture is of no assistance at all in resolving any issue as to whether one or two blows were struck, since the picture, as exhibited does not show more than one place, if any, where the deceased had been hit with the pistol barrel. The medical examiner, who was asked to interpret the picture for the jury, stated that the only visible laceration was connected to the bullet entry wound and could have been caused by the “blast effect of the bullet.” Another laceration, the doctor testified, was above the hair line and could not be seen in the photograph. It would seem axiomatic that a picture which does not illustrate that which the State seeks to establish by its introduction has no relevancy. Where, as here, an expert witness is available to describe the extent of, and location of a wound or wounds on a dead body better than a proffered gruesome picture, it is the better practice to avoid the natural negative result of exposing the jury to the grim reminder of just how horrible the appearance of death can be. Any doubt as to the admissibility of any evidence should be resolved in favor of the defendant in a criminal trial. See Lawless v. State, 72 Tenn. 173.

Lastly, I doubt the admissibility of proof by the State to show the victim’s reputation for being a peaceful and nonviolent person. Although the defendant did attempt to explain that he thought he was being attacked by an intruder, he did not know, according to his testimony, who the intruder was. He emphatically testified that if he had known it was his friend of twenty years standing, Willie Mahaffey, he would not have behaved in the aggressive manner that resulted in the victim’s death. This court has held that evidence of the nonviolent nature of a victim may only be shown after the defendant has raised the issue by attacking the character of the deceased. See Soloman v. State, 489 S.W.2d 547 (Tenn.Cr.App.1972).

This appeal presents an all too familiar instance of prosecutional overkill. It would be well for those charged with the responsibility of administering our criminal laws to be mindful of the simple truth that justice is served by affording an accused a fair trial, and is in no way dependent on whether the jury finds for or against the State.

As our Supreme Court observed more than a century ago:

“Although we might be satisfied of the prisoner’s guilt, yet it is our duty to see that he has a fair and impartial trial, and this he must have though costs may accumulate and punishment be long delayed.” Stokes v. State, 64 Tenn. 619 (1875).

I would reverse, and therefore respectfully dissent.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    GGE MANAGEMENT COMPANY et al., Petitioners, v. COMMERCE SAVINGS ASSOCIATION OF BRAZORIA COUNTY et al., Respondents.
    No. B-6217.
    Supreme Court of Texas.
    Nov. 24, 1976.
    Rehearing Denied Dec. 31, 1976.
    Sewell, Junell & Riggs, J. Eugene Clements, Walter T. Weathers, Jr., and Leighton E. Moss, Houston, for petitioners.
    Carl, Lee & Fisher, Howard C. Lee, Jr., Conway F. Jordan, Jr., Houston, Strasbur-ger, Price, Kelton, Martin & Unis, Royal H. Brin, Jr., Dallas, Don Stocking, Houston, M. K. Woodward, Austin, Kronzer, Abraham & Watkins, W. James Kronzer, Houston, for respondents.
   PER CURIAM.

The judgment of the Court of Civil Appeals in this proceeding decreed in part:

“. . . and judgment is rendered that plaintiff, Commerce Savings Association of Brazoria County, recover against defendant, GGE Management Company as principal obligor and against J. B. West-moreland and Richard B. Merrill, Jr. as guarantors, the sum of $528,878.98, being the unpaid principal balance of the note as of December 29, 1973, and against the said principal obligor, GGE Management Company, for interest accruing on said sum from and after said date at the rate of 10% per annum until paid . . . .”

See also the opinion of the Court of Civil Appeals, reported at 539 S.W.2d 71.

Gilbert Gertner and GGE Management Company, appellees in the Court of Civil Appeals, asserted by point of error in their Fourth Motion for Rehearing that “The Court [of Civil Appeals] erred in granting interest from December 29, 1973 at a rate of interest in excess of eight and one-half percent per annum until paid.” Commerce Savings Association of Brazoria County, appellant, thereafter directed a letter to the Clerk of the Court of Civil Appeals reading:

“Before the filing hereof, we received a copy of the Gertner Fourth Motion, contending, among other things, that interest should have only been awarded at the rate of 8½% per annum until paid. Appellant agrees with that suggestion, and it would be appreciated if you would therefore direct this letter to the Court’s attention.”

Notwithstanding, the Court of Civil Appeals overruled the Motion without further action.

The Application for Writ of Error of GGE Management Company sought alternative relief as follows:

“In the alternative, if the Court were inclined to affirm the opinion of the Court of Civil Appeals, the judgment should be modified to reduce interest on the debt to 8V2%, as Respondent’s counsel concedes to be appropriate.”

In reply, Commerce Savings Association of Brazoria County, Respondent, stated:

“We have conceded and do concede the interest on the judgment in favor of Re-' spondent should be in the amount of 8½% per annum, as provided in the Modification and Extension Agreement of August 25, 1972.”

Accordingly, the Application for Writ of Error of GGE Management Company, et al., is granted and the judgment of the Court of Civil Appeals is modified to read as follows:

“. . and judgment is rendered that plaintiff, Commerce Savings Association of Brazoria County, recover against defendant, GGE Management Company as principal obligor and against J. B. West-moreland and Richard B. Merrill, Jr. as guarantors, the sum of $528,878.98, being the unpaid principal balance of the note as of December 29, 1978, and against the said principal obligor, GGE Management Company, for interest accruing on said sum from and after said date at the rate of 8½% per annum until paid.”

As modified, the judgment of the Court of Civil Appeals is affirmed.


author: McGEE, Justice.

text:
    Marie Eugenie Bourg McKNIGHT, Petitioner, v. Robert E. McKNIGHT, Respondent.
    No. B-5960.
    Supreme Court of Texas.
    Nov. 24, 1976.

      Stubbeman, McRae, Sealy, Laughlin & Browder, William B. Browder, Jr., Midland, Milton L. Bankston, and James V. Hammett, Jr., of the firm, Austin, for petitioner.
    Turpin, Smith & Dyer, Irby L. Dyer, Midland, for respondent.
   McGEE, Justice.

This case concerns the division of property in a divorce action. Robert E. McKnight, the husband, appealed from the division of property made by the trial court alleging abuse of discretion and asserting that an improper division was made of partnership property. The court of civil appeals reversed the trial court and rendered another property division. 535 S.W.2d 658. We reverse the court of civil appeals regarding its disposition of the property and remand the case to the trial court; we affirm that part of the court of civil appeals’ judgment which maintains the trial court’s decree of divorce and award of child custody.

The jurisdiction of this court does not ordinarily extend to cases of divorce. Tex.Rev.Civ.Stat.Ann. art. 1821, subd. 3 (1964). The supreme court, however, has jurisdiction of cases where the court of civil appeals holds differently from a prior decision of another court of civil appeals on a question of law material to the disposition of the case. Tex.Rev.Civ.Stat.Ann. art. 1728, subd. 2 (1962). This court has jurisdiction because the present case is in direct conflict with Hooper v. Hooper, 403 S.W.2d 215 (Tex.Civ.App.—Amarillo 1966, writ dism’d w. o. j.) and Wilson v. Wilson, 225 S.W.2d 236 (Tex.Civ.App.—Fort Worth 1949, no writ). The court of civil appeals in this case rendered another property division after determining that the trial court abused its discretion in dividing the property. In so rendering, the court of civil appeals was in conflict with Hooper and Wilson which held that a court of civil appeals has no authority to render its own property division but must remand the case to the trial court.

Petitioner and respondent were married in 1952. During this marriage the couple had seven children, four of whom were minors at the time of this suit. Disharmony arose in the marriage and the parties separated on May 24, 1972. The wife filed suit for divorce on May 21, 1973. Incident to the divorce were the issues of child custody and the division of property.

The district court entered its decree of divorce on October 15, 1974, awarding custody of three minor children to the husband and custody of the youngest child to the wife. Two of the remaining children, who were not minors, chose to live with the husband. The third child was married and not living with the family.

The trial court divided the property in its divorce decree without expressing the value of the property awarded. The wife was given all the distributions and disbursements from her father’s estate which included shares of stock in 16 different companies, all the cash or deposits in three financial institutions held in her name or the husband’s name, 3,500 shares of stock of First International Bancshares, 50 shares of stock of the Fort Davis State Bank, the cash surrender value of all the life insur-anee policies owned by or in the name of either the husband or wife, all the household goods and furnishings of the family home, a 1972 Buick station wagon and one share of stock in the membership of the Odessa Country Club. The wife was also awarded one-fourth of all the cattle and animal stock owned by the McKnight Ranch Company, a partnership in which the husband was part owner, and one-half of the monies in the McKnight Ranch account. The cattle were to be selected by the wife and delivered in kind. The husband was awarded 206 shares of First International Bancshares, 12 shares of stock in the Fort Davis State Bank, ownership of life insurance held in his name, subject to the cash surrender value awarded the wife, the family home, and any interest owned by the husband in 12 drill sites located in Odessa, Texas. The husband was awarded one-fourth of all McKnight Ranch Company cattle, subject to the distribution and award to the wife, one-half interest in the McKnight Ranch Company and its equipment, subject to any outstanding indebtedness of the company. The husband was given his interest in 23,040 acres of ranch land in Crane County, Texas, and any real estate interest held in his name in the Jeff, McCutcheon and Grierson Ranches located in Jeff Davis County, Texas. The husband was required to assume any tax liability incurred during the marriage with any tax refund being split between husband and wife. The husband was also ordered to pay attorney’s fees in the sum of $9,750, all court costs, and child support payments of $600 a month for the child in the wife’s custody.

The court of civil appeals held that the trial court “abused its discretion in regards to the rights of the children of the marriage.” The court stated that this abuse resulted because “the children are the obligation of the husband, yet he is stripped of all cash, a portion of his livestock, left a business to operate but no funds to operate it with, and ordered to pay debts. The day-to-day expense of five children requires cash or a readily available source of cash . . . 535 S.W.2d at 660.

The rationale for the court of civil appeals’ holding is the lack of immediate cash assets to operate the ranch and provide for the children. The court remedied this situation by first relieving some of the husband’s tax liability. The court reversed that part of the judgment ordering the husband to pay any taxes incurred during the marriage and stated that “[jjudgment is here rendered that the parties share equally, 50-50, any income tax liability incurred during the marriage . . . .” 535 S.W.2d at 661. The court of civil appeals next reversed the portion of the judgment awarding the wife all the deposits in the financial institutions named by the trial court. The court of civil appeals stated that “judgment is here rendered” that all deposits in the name of the wife would remain hers but that any deposits excepting the McKnight Ranch account, held in the name of the husband or jointly in the name of the husband and wife, would be shared equally. The court also reversed the trial court’s award of the cash surrender value of various life insurance policies stating that “judgment is here rendered that the ownership and cash surrender value of any policies of life insurance standing in the name of Robert E. McKnight or owned by him are awarded to him.” The court reversed the wife’s award of any specific McKnight Ranch Company property holding that such an award was in violation of the Texas Uniform Partnership Act, Texas Revised Civil Statutes Annotated article 6132b, and rendered judgment that the husband recover one-half interest in the partnership of McKnight Ranch Company.

We believe the court of civil appeals erred in rendering specific awards of property rather than remanding the case to the trial court after it determined that there was an abuse of discretion. It is well settled that the trial court has broad discretion in determining the disposition of property in divorce actions and this discretion will not be disturbed unless an abuse of discretion is shown. Cockerham v. Cocker-ham, 527 S.W.2d 162 (Tex.1975); Bell v. Bell, 513 S.W.2d 20 (Tex.1974); Tex.Family Code Ann. § 3.63 (1975). The role of the court of civil appeals in reviewing cases where property is divided in a divorce action is to determine only if there is an abuse of discretion. Hooper v. Hooper, 403 S.W.2d 215 (Tex.Civ.App.—Amarillo 1966, writ dism’d w.o.j.); Wilson v. Wilson, 225 S.W.2d 236 (Tex.Civ.App.—Fort Worth 1949, no writ). When the court of civil appeals rendered specific awards of property, it was in effect substituting its determination of “just and right” for the trial court’s determination. Tex.Family Code Ann. § 3.63 (1975). The court of civil appeals in so rendering was infringing upon the trial court’s discretion provided in section 3.63 of the Family Code. This case directly conflicts with the rule announced in Hooper v. Hooper and Wilson v. Wilson. In Hooper the court of civil appeals determined that the trial court had abused its discretion and remanded the case with this language:

“We are not to be understood to hold that the property should be divided equally or any other definite proportion. That is not the prerogative of this court. We are simply charged with the authority to determine whether the division of the property made by the judgment should be upheld.” 403 S.W.2d at 217.

In Wilson the court of civil appeals held there had been an abuse of discretion in disposing of certain property. The court did not hold that the property should be divided equally or in any named proportion but stated that “[o]ur only authority is to determine whether the disposition of property made by the judgment should be upheld.” Courts of civil appeals in reviewing property divisions on divorce do not have the authority to render judgments dividing the property of the spouses.

The husband contends that authority for the action of the court of civil appeals can be found in Texas Rules of Civil Procedure 434 which states:

“When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial.”

The “matter to be decreed” in this case is a “just and right” division of the property in compliance with the Family Code. The court of civil appeals could not render a property division under the authority of Rule 484 because the matter to be decreed was dependent on the discretion of the trial court.

The husband also contends that the court of civil appeals derives authority for its action from Fuhrman v. Fuhrman, 302 S.W.2d 205 (Tex.Civ.App.—El Paso 1957, writ dism’d w.o.j.). There the court of civil appeals reviewed a divorce case where the trial court awarded each spouse their own separate property and the community property was divided equally between them. The court held that the trial court had incorrectly determined that 6613.9 shares of stock was community property and because no findings were made which justified a different method of division from that which was made, the court of civil appeals remanded the case with instructions to set aside the stock as separate, not community, property. The case did not deal with the court of civil appeals rendering an award because of an abuse of discretion and we do not find that it lends authority to the court of civil appeals in the present case. The respondent has failed to cite any case where a court of civil appeals sought to remedy an abuse of discretion by rendering an award of property rather than remanding the case to the trial court. Other cases relied on by the husband are cases where the court of civil appeals has ordered a new trial subject to remittitur of property pursuant to the court’s holding regarding an equitable division. Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ); Dietz v. Dietz, 540 S.W.2d 418 (Tex.Civ.App.—El Paso 1976, no writ). These cases are distinguishable from the present case because the courts of civil appeals in Cooper and Dietz would remand the case for a new trial or would affirm a judgment for the division of property if a party would remit certain property to the other spouse. In these situations the option lay with one of the parties to either retry the case or remit some property, but in the present case the property is divested without the party having an option. Mr. McKnight also cites cases in which the courts of civil appeals rendered a judgment either granting or denying a divorce decree due to an error of the trial court regarding a ground relied on for the divorce. None of those cases mentions property division and the judgment of the court of civil appeals only grants or denies a divorce. These cases are not authority for the court of civil appeals in this case.

The trial court also awarded the wife specific properties of the McKnight Ranch Company. The company was run as a partnership with Mr. McKnight owning a 50 percent interest, his father owning a 30 percent interest and his sister owning the remaining 20 percent. The court of civil appeals held that under the Texas Uniform Partnership Act, Texas Revised Civil Statutes Annotated article 6132b, the rights of a divorcing spouse can only attach to the husband’s interest in the partnership and not specific partnership property. The court of civil appeals was correct in its holding that the trial court erred in awarding specific partnership property. The Texas Uniform Partnership Act provides:

“Sec. 28-A. Extent of Community Property Rights of a Partner’s Spouse.
“(1) A partner’s rights in specific partnership property are not community property.
“(2) A partner’s interest in the partnership may be community property.
“(3) A partner’s' right to participate in the management is not community property.
“Sec. 28-B. Effect of Death or Divorce on Interest in the Partnership.
“(1)(A) On the divorce of a partner, the partner’s spouse shall, to the extent of such spouse’s interest in the partnership, be regarded for purposes of this Act as an assignee and purchaser of such interest from such partner.”

The trial court detailed a division of the partnership cattle between the husband and wife and awarded the wife one-half of the partnership bank account. The court of civil appeals held the award violated the Act and rendered that the husband recover one-half interest in the partnership with the wife getting no interest in the partnership. While we think the court of civil appeals was correct in its application of the Act, the court should have remanded this issue with the other issues of property division rather than making an award to the husband. It would have been proper for the trial court in its discretion to have given the wife an interest in the partnership. The court of civil appeals by rendering that the husband take a one-half interest in the partnership was infringing on the discretion of the trial court.

The judgment of the court of civil appeals is reversed and the cause is remanded to the trial court for division of the property. In all other respects the judgment of the court of civil appeals is affirmed.


author: PEDEN, Justice.

text:
    William DICKSON, Appellant, v. E. C. McWILLIAMS, Appellee.
    No. 16746.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 14, 1976.

      Dickson & Associates; William M. Dickson, Houston, for appellant.
    Eastham & Meyer; Sam Dawkins, Jr., Houston, for appellee.
   PEDEN, Justice.

This is an appeal from the granting of a summary judgment against Mr. William Dickson, an attorney, who had intervened in a suit filed by former client Mrs. Ollie R. McWilliams against E. C. McWilliams, her former husband. Dickson sought to collect attorney’s fees from both of them under his contract with Mrs. McWilliams for representation in their divorce case. The contract provided that Dickson would be paid $40 an hour for time expended plus a percentage of the community property awarded to Mrs. McWilliams.

In the divorce decree the trial court awarded Dickson a judgment for $20,000 against Mr. McWilliams as a reasonable attorney’s fee for services rendered to Mrs. McWilliams “through and including the trial.” Mr. McWilliams appealed, but the decree was affirmed. Mrs. McWilliams later brought this suit against E. C. McWilliams, and Dickson intervened. He sought to recover from Mrs. McWilliams, under the contract or under quantum meruit, for services rendered both before and after the divorce was granted (less the amount already paid him by Mr. and Mrs. McWilliams). His claim against Mr. McWilliams alleged that the services he rendered to Mrs. McWil-liams were necessaries.

The trial court granted Mr. McWilliams an interlocutory judgment holding that as a matter of law he was not liable to Dickson or to Mrs. McWilliams. That interlocutory summary judgment was brought forward and made final when the trial court entered a final judgment disposing of the other issue in the case by approving a settlement whereby Mrs. McWilliams agreed to pay Dickson an additional $85,000.

Dickson’s points of error are:

“1. The trial court erred in granting the Motion for Summary Judgment because the facts before the Court did not entitle appellee to judgment as a matter of law upon his Motion for Summary Judgment, even if all genuine issues of material fact were undisputed.
“2. The trial court abused its discretion in granting the Motion for Summary Judgment because there was no dispute as to the existence of a legally material fact, and even though the evidence might not have been in dispute, reasonable persons might draw different inferences from it as to the existence of a legally material fact.”

Mrs. McWilliams’ original divorce petition, signed by Dickson, stated:

“Plaintiff will show that under the law of Texas the Defendant is liable for her reasonable attorney fees and she asks that on final hearing hereof this Honorable Court award judgment to her aforementioned attorneys (Dickson and his firm) in an amount shown in trial to be reasonable in accordance with the aforementioned Minimum Fee Schedule.”

The divorce decree included these provisions:

“It is further ORDERED, ADJUDGED AND DECREED that the Respondent (E. C. McWilliams) shall assume and pay off and discharge as the same become due any and all of the obligations and liabilities of the community estate and/or of the respective parties, which obligations and liabilities have been incurred prior to September 30, 1970, save and excepting only those future liabilities and obligations Ordered in this Judgment to be paid by Petitioner (the Notes on the farm awarded to Petitioner), and which obligations and liabilities have heretofore been disclosed to the Court as including the following:
(a) The obligations and liabilities represented by Petitioner to have been incurred prior to September 30, 1970, a complete list of which is hereby Ordered to be furnished to Respondent, in the total amount of $ 418.89
(b) The obligations and liabilities represented by Respondent to have been incurred prior to September 30,1970, which consist of the following as furnished by Respondent:
(1) Accounts Payable—
Blue Ribbon Rice Mills, Inc. $60,500.00
(2) Accounts Payable—
other 433.11
(3) Accounts Payable—
T. Thornton 16,920.55
(4) Notes Payable—
Cadillac automobile 3,000.00
(5) Accrued Taxes 1,499.90
(6) Accrued Accounts
Payable 11,766.58
(7) United States Income Tax through September 30, 1970, including the tax on the capital gain on the Clay Road property previously sold 113.000.00_
$207,120.14
TOTAL AMOUNT OF OBLIGATIONS specifically Ordered to be paid by Respondent: $207,539.03
The above and foregoing obligations and liabilities are based on the representations of the respective parties.
“It is further ORDERED, ADJUDGED AND DECREED that William Dickson, Attorney for Petitioner, Ollie R. McWil-liams, do have and recover of and from the Respondent, Edward Carroll McWil-liams, as and for Petitioner’s reasonable attorney fees herein, the sum of Twenty Thousand Dollars ($20,000.00), for services rendered by the said William Dickson through and including the trial in the Court of Domestic Relations No. 4 of Harris County, Texas; the Respondent is hereby ORDERED to pay such sum forthwith directly to the said William Dickson, Attorney at Law . . . ”

Dickson contends that the primary question of law presented by Mr. McWilliams’ motion for summary judgment is whether or not the cause of action asserted by appellant is barred by the doctrine of res judica-ta and/or the doctrine of merger. Appellant’s motion for summary judgment was supported by his affidavit, the divorce decree and the mandate of the Fourteenth Court of Civil Appeals affirming it.

The Texas Supreme Court in Abbott Laboratories v. Gravis, 470 S.W.2d 638 (Tex.1971), holding that a suit was barred by res judicata, stated in part:

“. . . an existing final judgment rendered upon the merits by a court of competent jurisdiction upon a matter within its jurisdiction is conclusive of the rights of the parties in all other actions on the points at issue and adjudicated in the first suit. Permian Oil Co. v. Smith, 129 Tex. 413, 107 S.W.2d 564 (1937); 2 Freeman on Judgments (5th Ed.) 1322. Further, the rule of res judicata in Texas bars litigation of all issues connected with a cause of action or defense which, with the use of diligence, might have been tried in a former action as well as those which were actually tried. Ogletree v. Crates, 363 S.W.2d 431 (Tex.1963); Restatement of Judgments 159, Introductory Notes to Section 41. Stated differently, a party cannot relitigate matters which he might have interposed, but failed to do so, in an action between the same parties or their privies in reference to the same subject matter. Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97 (1894).”

The appellant contends that his claim against Mr. McWilliams is not barred by the doctrine of res judicata, even though the amount of his recovery against Mr. McWilliams was fixed in the divorce decree, because he then sued on quantum meruit but now bases his claim on his fee contract with Mrs. McWilliams dated January 12, 1970. He cites Griffin v. Holiday Inns of America, 496 S.W.2d 535 (Tex.1973). In that case it was stated that a judgment for a defendant in a suit for a breach of contract on the ground that he is not liable for a breach of contract does not preclude a subsequent suit in quantum meruit, the causes of action being regarded as different for res judicata purposes. That case does not apply to the facts in our case. In our case the divorce decree fixed the amount of the reasonable attorney’s fee to be paid by Mr. McWilliams to the wife’s attorney, and he paid it. The allowance of attorney’s fees to the wife in a divorce action, as well as the amount thereof, are within the sound discretion of the trial court. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1951). A trial judge’s refusal to allow a fee for the appeal is a matter within his discretion. Schwartz v. Jacob, 394 S.W.2d 15 (Tex.Civ.App.1965, writ ref. n. r. e.).

The decision as to the amount of attorney fees for appellate services is made by the appellate court in some jurisdictions. In Texas the award of any attorney’s fee is a fact issue which must be passed upon by the trial court. International Security Life Insurance Co. v. Spray, 468 S.W.2d 347 (Tex.1971).

The attorney representing the wife in the divorce is bound by the decree insofar as a subsequent claim against the husband is concerned. Roberts v. Roberts, 144 Tex. 603, 192 S.W.2d 774 (1946); Masters v. Stair, 505 S.W.2d 702, 518 S.W.2d 439 (Tex.Civ.App.1975, no writ); Mullinax, Wells, Mauzy and Collins v. Dawson, 478 S.W.2d 121 (Tex.Civ.App.1972, writ ref. n. r. e.).

Dickson was the attorney of record for Mrs. McWilliams in her divorce. The amount of attorney’s fee Mr. McWilliams was required to pay his wife’s lawyer was fixed in that suit, and Dickson is bound by it.

The appellee has established as a matter of law that he is entitled to summary judgment.

Further, the final judgment in this case was signed “Approved" by all counsel, and the trial judge’s docket sheet states that the judgment was an agreed one. Nothing in the decree shows that the intervenor excepted or gave notice of appeal.

“While the judgment here under consideration does not purport in the body thereof to have been rendered by agreement, and no express stipulation appears in the record that the judgment be so entered, the fact that the approval of all the attorneys of record appears on the face of the judgment record and the signature of the trial judge appears subscribed thereto on the Minutes, in connection with other circumstances, warrants the holding, we think, the judgment was by agreement.” State v. Reagan County Purchasing Co., 186 S.W.2d 128 at p. 136 (Tex.Civ.App.1944, writ ref. w. m.).

Affirmed.


author: KEITH, Justice.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. The CITY OF KOUNTZE, Appellee.
    No. 7842.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 14, 1976.

      James H. Chesnutt, II, Beaumont, Darrell L. Barger, Houston, for appellant.
    J. A. McGaffey, Kountze, for appellee.
   KEITH, Justice.

Defendant below appeals from orders which overruled its plea of privilege to be sued in Dallas County and granted plaintiff a temporary injunction restraining defendant from closing its business office in the City of Kountze. We will speak of the parties as they appeared in the trial court.

Plaintiff alleged that the defendant was a private corporation and a public utility engaged in the conveyance, transmission or reception of communications over a telephone system in the City of Kountze and maintained a business office therein where the patrons could conduct transactions with defendant’s employees and agents. Further allegations were made to the effect that the defendant was about to close such business office to the great injury and harm to the plaintiff city, its citizens, and to the patrons of defendant company residing within the plaintiff city. Originally, plaintiff sought only an injunction to restrain the closing of the office; but, in amended pleadings, it sought a declaratory judgment defining the rights, duties, and obligations of the parties.

As noted earlier, the trial court overruled defendant’s plea of privilege and entered an order enjoining defendant from closing its business office pending a hearing on the merits of the case. Defendant duly perfected appeals from such interlocutory orders. Neither party sought to advance the submission of this cause and it was reached in the ordinary sequence of cases upon the docket of this court.

Upon oral submission of this cause, the court, sua sponte, raised the question of jurisdiction of the court to dispose of the cause since the Public Utility Regulatory Act, now codified as Tex.Rev.Civ.Stat.Ann. art. 1446c (1975-1976 Supp.), hereafter the “Act”, had become fully effective. We requested supplemental briefs from the parties and such have been filed.

Although there were no pleadings challenging the jurisdiction of either the trial court or this court and the matter was not raised directly by the parties, we must first determine our jurisdiction over the controversy. As was said in Able v. Bloomfield, 6 Tex. 263, 264 (1851), “Want of jurisdiction of the subject matter of the suit, will arrest a cause at any stage of the proceedings.” See also, City of Beaumont v. West, 484 S.W.2d 789, 791 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.).

As we said in Beaumont v. West, supra:

“Jurisdiction of a court is conferred only by the constitution and the statutes and a court without jurisdiction cannot render a valid judgment. Nevitt v. Wilson, 116 Tex. 29, 285 S.W. 1079, 1084, 48 A.L.R. 355 (1926); Daniel v. Dallas Independent School District, 351 S.W.2d 356, 359 (Tex.Civ.App., El Paso, 1961, error ref. n. r. e.). If at any time during its progress it becomes apparent that the court has no authority under the law to adjudicate the issues presented, it becomes the duty of the court to dismiss it. Snyder v. Wiley & Porter, 59 Tex. 448, 449 (1883); Galley v. Hedrick, 127 S.W.2d 978, 981 (Tex.Civ.App., Amarillo, 1939, no writ).”

Being of the opinion that the new legislation has mooted the controversy and that neither the trial court nor this court has jurisdiction to determine the questions presented, we reverse the judgment of the trial court and dismiss the cause for the reasons now to be stated.

Using the broadest possible language, the Legislature conferred exclusive original jurisdiction upon the Public Utilities Commission (hereinafter “Commission”) over the business and property of all telecommunications utilities for the purpose of regulating “rates, operations, and services.” Obviously, a business office of a telephone company is within the definition of “facilities” found in the Act. We likewise hold that it is equally clear that the closing of a business office falls within the “service” category as defined in the Act.

After carefully analyzing the provisions of the Act quoted earlier, we are led ineluctably to the conclusion that the Act vests in the Commission the exclusive original jurisdiction to determine whether a telephone utility should be permitted to close a business office in a community or should be denied such permission. Since September 1, 1976, the Commission is and has been the only forum having jurisdiction to determine that question. If plaintiff below, or any other interested and affected person desires to complain of the proposed closing of the business office by defendant, complaint must be made to the Commission.

We recognize the general rule that “once jurisdiction is lawfully and properly acquired, no subsequent fact or event in the particular case serves to defeat the jurisdiction.” Haginas v. Malbis Memorial Foundation, 163 Tex. 274, 354 S.W.2d 368, 371 (1962). We are also familiar with the rule enunciated in Western Alliance Insurance Company v. Tubbs, 400 S.W.2d 850, 852 (Tex.Civ.App.—Waco 1965, writ ref’d n. r. e.), where the court said:

“A statute which deprives a court of existing jurisdiction is strictly construed, and ‘when jurisdiction is once granted it will not be deemed taken away by a similar jurisdiction being given to another tribunal.’ 3 Sutherland, Statutory Construction (3rd ed.) See. 6803, p. 328.”

But the Act needs no construction. It is readily apparent that the Legislature has made a comprehensive statute applicable to the entire field of legislative regulation of public utilities replacing the earlier antiquated and greatly criticized pattern of regulation theretofore in effect. In essence, the Act repealed the law giving jurisdiction to the district court and it contained no savings clause; thus, it takes away the right to proceed in a pending case undetermined at the time when it becomes effective. See and compare, Texas Farm Bu reau Cotton Ass’n v. Lennox, 296 S.W. 325, 327 (Tex.Civ.App.—Texarkana 1927, no writ). See also, National Carloading Corp. v. Phoenix-El Paso Express, 142 Tex. 141, 176 S.W.2d 564, 568 (1943); Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280,284 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); McGovern v. American Airlines, Inc., 537 S.W.2d 341, 344 (Tex.Civ.App.—Beaumont 1976, writ ref’d n. r. e.).

Plaintiff city’s sole claim to authority to regulate the acts and conduct of defendant within its corporate limits was contained in Tex.Rev.Civ.Stat.Ann. art. 1119 (1963) prior to its repeal. But, the Act does not destroy the rights of plaintiff; it simply takes away from the district court the jurisdiction to adjudicate the question and confers the exclusive jurisdiction upon another tribunal, namely, the regulatory commission. See in this connection the remarks of Mr. Justice Holmes in Gallardo v. Santini Fertilizer Co., 275 U.S. 62, 48 S.Ct. 24, 72 L.Ed. 157 (1927). Indeed, the law enunciated in National Car-loading Corp., supra, compels a reversal of the judgments and orders entered in the trial court and a dismissal of the cause.

However, plaintiff’s counsel argues that since the District Court had original and primary jurisdiction over the controversy at the time of the institution of the suit and the entry of the two interlocutory orders involved herein, the Legislature was prohibited from “eliminating existing causes of action”, citing Constitution of Texas, art. I, Sec. 13. We disagree.

It is appropriate to note, at this point, two rules which are applicable to the question now under Njonsideration:

1. “The repeal of a statute leaves unaffected all rights in the nature of contract which have vested under the original statute.” Collins v. Warren, 63 Tex. 311, 314 (1885); Commercial Insurance Co. of Newark, N.J. v. Lane, 480 S.W.2d 781, 783 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.).

2. “[A] litigant has no vested right in a remedy, and that remedial statutes are valid and control the litigation from the date they become a law, and all proceedings taken thereafter must be under the new law.” Phil H. Pierce Co. v. Watkins, 114 Tex. 153, 263 S.W. 905, 907 (1924).

Indeed, in Exxon Corporation v. Brecheen, 526 S.W.2d 519, 525 (Tex.1975), the Supreme Court agreed with the holdings of the Court of Civil Appeals saying that the statute then under consideration was “procedural and remedial in nature, and is constitutional; that the statute governs the proceedings in litigation pending on its effective date; . . .”

Plaintiff’s argument that the Act is a retroactive statute is likewise without merit. The general rule is that a statute is retroactive only when it takes away or impairs vested rights acquired under existing laws. Turbeville v. Gowdy, 272 S.W. 559, 561 (Tex.Civ.App.—Fort Worth 1925, no writ); Bryant v. State, 457 S.W.2d 72, 78 (Tex.Civ.App.—Eastland 1970, writ ref’d n. r. e.); Inman v. Railroad Commission, 478 S.W.2d 124, 129 (Tex.Civ.App.—Austin 1972, writ ref’d n. r. e.).

No rights vested under the delegation of regulatory power under Art. 1119. It is well to note that our Supreme Court held in Kousal v. Texas Power & Light Co., 142 Tex. 451, 179 S.W.2d 283, 285-286 (1944):

“[F]ixing and regulating utility rates is said to be a governmental function inherent in the state. It is legislative in character, but the legislature may delegate the power to rate making governmental agencies or to municipal corporations as to utilities operating within the limits of such municipal corporations. This power of regulation the legislature has conferred on ‘Home Rule’ cities by Art. 1175(12), Vernon’s Texas Civil Statutes, which also prescribes that such cities may ‘from time to time alter or change such rules, regulations and compensation.’ See, also, Art. 1119, Ibid.”

See also, Schenker v. City of San Antonio, 369 S.W.2d 626, 629 (Tex.Civ.App.—San Antonio 1963, writ ref’d n. r. e.).

It is elemental that a municipal corporation possesses no power that is not conferred by its charter or by the general laws under which it was formed. See authorities cited in 40 Tex.Jur.2d, Rev. Part 1, Municipal Corporations § 318, p. 77 (1976). And, plaintiff city being a general law city (as distinguished from a Home Rule City), all the authority which it has ever possessed in the regulation of the telecommunications company was that conferred by Art. 1119. That was a delegation of legislative authority under the rationale of the Kousal Case, supra (179 S.W.2d at 285-286). Using the clearest possible language, the Legislature repealed Art. 1119, effective September 1, 1976. Act § 90(a).

Having once delegated the legislative power to a general law city, it is not to be doubted that the Legislature had the authority to rescind this delegation and place such power in the Utility Commission. See Thompson v. United Gas Corporation, 190 S.W.2d 504, 508 (Tex.Civ.App.—Austin 1945, writ ref’d).

Moreover, it should always be remembered that under Art. Ill, Sec. 1, Constitution of Texas, all. legislative power is vested in the Legislature. And, as said in Walker v. Baker, 145 Tex. 121, 196 S.W.2d 324, 328 (1946): this “means all legislative power- — the power to make, alter and repeal laws — not expressly or impliedly forbidden by other provisions of the State and Federal Constitutions.” Thus, from and after September 1, 1976, the plaintiff was deprived of all legislative power delegated to it under Art. 1119, and such power was delegated, exclusively, to the new Utilities Commission.

Defendant’s counsel calls to our attention the decision of Waxahachie Bank & Trust Co. v. Falkner, 324 S.W.2d 583 (Tex.Civ.App.—Austin 1959, no writ), holding that when the Legislature has enacted a law making a cause of action moot, the judgment below should be reversed and the cause dismissed. This holding is in accord with the generally prevailing rule relating to moot cases upon appeal. As was said in Freeman v. Burrows, 141 Tex. 318, 171 S.W.2d 863 (1943): “When a cause becomes moot on appeal, all previous orders and judgments should be set aside and the cause, not merely the appeal, dismissed.” See also, Texas Foundries v. International Moulders & F. Wkrs., 151 Tex. 239, 248 S.W.2d 460 (1952); Guajardo v. Alamo Lumber Company, 159 Tex. 225, 317 S.W.2d 725 (1958); Blanton v. City of Houston, 163 Tex. 224, 353 S.W.2d 412 (1962); Lund v. Alanis, 384 S.W.2d 123 (Tex.1964); LeFebvre v. LeFebvre, 510 S.W.2d 29,31 (Tex.Civ.App.—Beaumont 1974, no writ), concurring opinion.

It is readily apparent, from the foregoing discussion, that we are of the opinion that the Legislature, by the adoption of the Act, has divested the district courts of Texas of all original jurisdiction to hear and determine questions such as those involved in this proceeding. Consequently, since the cause is now moot, we reverse and set aside all orders of the trial court and dismiss the cause. Costs are divided between the parties equally.

All prior orders are reversed and the cause is dismissed.

STEPHENSON, J., not participating.

      . Acts 1975, 64th Leg., p. 2327, ch. 721. This Act became effective on September 1, 1975 (Sec. 88); but, under Sec. 87(b), “The regulatory authority shall assume jurisdiction over rates and service of public utilities on September 1, 1976.”
      All emphasis has been supplied unless otherwise indicated.

      . The following dates are important in our consideration of the question presented: Suit was instituted on January 15, 1976; the order overruling defendant’s plea of privilege was entered on February 6, 1976; and the order granting the temporary injunction was signed on February 11, 1976. The cause was submitted on briefs and oral argument to this court on September 16, 1976.

      . Section 18 of the Act reads: “Subject to the limitations imposed in this Act, and for the purpose of regulating rates, operations, and services so that such rates may be just, fair, and reasonable, and the services adequate and efficient, the commission shall have exclusive original jurisdiction over the business and property of all telecommunications utilities in this state.”

      . Section 3(n) of the Act reads: “ ‘Facilities’ means all the plant and equipment of a public utility, including all tangible and intangible real and personal property without limitation, and any and all means and instrumentalities in any manner owned, operated, leased, licensed, used, controlled, furnished, or supplied for, by, or in connection with the business of any public utility.”

      . Section 3(s) of the Act reads: “ ‘Service’ is used in this Act in its broadest and most inclusive sense, and includes any and all acts done, rendered, or performed and any and all things furnished or supplied, and any and all facilities used, furnished, or supplied by public utilities in the performance of their duties under this Act to their patrons, employees, other public utilities, and the public, as well as the interchange of facilities between two or more of them. Service shall not include the printing, distribution, or sale of advertising in telephone directories.”

        .Section 83 of the Act reads: “Any affected person may complain to the regulatory authority in writing setting forth any act or thing done or omitted to be done by any public utility in violation or claimed violation of any law which the regulatory authority has jurisdiction to administer, or of any order, ordinance, rule, or regulation of the regulatory authority.”

      . Art. 1119 reads: “The governing body of all incorporated cities and towns in this State incorporated under the General Laws thereof shall have the power to regulate, by ordinance, the rates and compensation to be charged by all persons, companies, or corporations using the streets and public grounds of said city or town, and engaged in furnishing water, gas, telephone, light, power, or sewerage service to the public, and also to prescribe rules and regulations under which such commodities shall be furnished, and service rendered, and to fix penalties to enforce such charges, rules, and regulations. . . . ”

      . We summarize, without benefit of quotation marks or citation of authorities the holdings of the Court of Civil Appeals thus approved. See Exxon Corporation v. Brecheen, 519 S.W.2d 170, 183 (Tex.Civ.App.—Houston [1st Dist.] 1975): (1) Although the constitution forbids retroactive application of legislative enactments, statutes relating to procedure do not fall within this prohibition. (2) Statutes which have application to remedial and procedural matters are valid and control the litigation from the date they become law.


author: DIES, Chief Justice.

text:
    Gene MESHWERT, Appellant, v. Betty Joe MESHWERT, Appellee.
    No. 7859.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 14, 1976.
    Rehearing Denied Nov. 4, 1976.
    Melvin J. Boneau, Frank M. Lamson, Port Arthur, for appellant.
    E. B. Lord, Beaumont, for appellee.
   DIES, Chief Justice.

Petitioner, Betty Joe Meshwert, sought divorce from her husband, Gene Meshwert, and a property division. Judgment was entered dissolving the seventeen months marriage, dividing the property, and awarding petitioner attorney’s fees, from which respondent husband brings this appeal.

The appellee wife (petitioner) has a jurisdictional crosspoint which we must address before discussing the points of the appellant husband. We quote the cross-point in the margin, and the supporting fact structure as found in her brief:

“Appellee says that this Honorable Court should not have granted Appellant’s motion for extended time to file the record. The final date for filing transcript and statement of facts was April 14, 1976. As previously shown, the statement of facts was ready for filing on March 29,1976. The transcript was completed March 12, 1976. The only excuse offered by Appellant was an erroneous miscalculation. The decision of this Court is contrary to Sloan v. Passman, 536 S.W.2d 575 (no writ history). Also see Delaney v. Adkins (no writ history), decided June 9, 1976 by San Antonio CCA.”

At the time we acted upon appellant’s motion for leave to file the record, we had before us the slip opinion in Sloan v. Passman, 536 S.W.2d 575 (Tex.Civ.App.—Dallas 1976, no writ), with Justice Guittard’s dissenting opinion now reported in 538 S.W.2d 1.We decided then that we would follow Justice Guittard’s dissent until the Supreme Court had determined otherwise.

We decline to follow the majority in Sloan, supra; instead, we adopt the rationale of Justice Guittard’s dissent therein reading:

“[A]ny plausible statement of circumstances indicating that failure to file within the sixty-day period was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance, may be accepted as a ‘reasonable explanation,’ even though counsel or his secretary may appear to have been lacking in that degree of diligence which careful practitioners normally exercise.”

Since that time, several other courts of civil appeals have followed the dissent in Sloan v. Passman ; namely,

1. The Austin Court of Civil Appeals: Stieler v. Stieler, 537 S.W.2d 954, 957 (1976, no writ history);

2. The San Antonio Court of Civil Appeals: Gallegos v. Truck Ins. Exchange, 539 S.W.2d 353, 354 (1976, no writ history).

3. The Houston Court of Civil Appeals— Fourteenth District: Mulloy v. Mulloy, 538 S.W.2d 818, 819 (1976, no writ).

The series of cases herein cited are all in accord with our original action in permitting the late filing of the record. Until notified otherwise by a court of competent jurisdiction, i. e., the Supreme Court of Texas, this court will follow the rationale of Justice Guittard’s dissent in Sloan, supra, and thus join in what appears to be the uniform rule in effect in the Third, Fourth, Fourteenth, and now the Ninth Courts of Civil Appeals, with the Fifth Court being the only one presently known to us holding to the contrary.

Appellee’s crosspoint is overruled.

Respondent husband owned a heating and air conditioning business before marriage to petitioner, January 25, 1974. On February 27, 1974, respondent gave a check in the amount of $5,150, drawn on the business (Comfort Zone Co.) for the purchase of a beach lot in Galveston County. Subsequently, respondent and petitioner borrowed money and built a beach cabin on the property. The trial court awarded this property to petitioner with full assumption of the debt against it. Respondent contends he traced the $5,150 purchase price as being his separate property and, therefore, it was error for the court to award this property to his wife.

He presented evidence, he contends, that during the month of February, 1974, his business (Comfort Zone) made a profit of $2,700, and that during this month he drew out of the business $2,600; ergo, the $5,150 check had to come from separate funds, viz., moneys earned by the business before January 25, 1974, marriage with petitioner. We disagree.

At the time of the dissolution of a marriage there is a rebuttable presumption that property possessed is community, and, to discharge that burden, the one so claiming must trace and identify property claimed as separate property. Where the evidence shows that separate and community property have been so commingled as to defy resegregation and identification, the burden is not discharged and the presumption that the entire mass is community controls its disposition. Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex.1965); McKinley v. McKinley, 496 S.W.2d 540 (Tex.1973).

The earnings of respondent’s business were community. Moss v. Gibbs, 370 S.W.2d 452 (Tex.1963); Bell v. Bell, 504 S.W.2d 610, 611 (Tex.1974). From the time of the marriage of the parties until the purchase of this beach property, more than $30,000 was deposited in this business account which, under the authorities we cite above, is presumed to be community funds. The burden of tracing would not be overcome by a showing of a decrease in net worth. Stanley v. Stanley, 294 S.W.2d 132, 136 (Tex.Civ.App.—Amarillo 1956, writ ref’d n. r. e.). See also, McKinley v. McKinley, supra, at 542-544; Waheed v. Waheed, 423 S.W.2d 159 (Tex.Civ.App.—Eastland 1967, no writ).

The court also awarded petitioner $9,500. The record reflects that net profit of the business during the marriage was almost $48,000, and that items of equipment such as trucks were purchased during that time.

The C.P.A. who testified for respondent admitted he could only identify the fixed assets of the business ($16,910) as being there at the time of marriage. The business had $106,000 in accounts receivable on August 31,1975. At that time there was $33,000 in inventory. Certainly some of this was community. Texas divorce courts are given wide discretion in making a division of the estate of the parties; equal division is not required; upon appeal it is presumed that the trial court exercised its discretion properly, and the cause will be reversed only where there is a clear abuse of discretion. Looney v. Looney, 541 S.W.2d 877 (Tex.Civ.App.—Beaumont, 1976) (not yet reported), and authorities cited. We find no abuse of discretion here. Respondent’s (appellant’s) first three points are overruled.

Respondent has points of error contending that the evidence is insufficient to sustain the award of $3,750 as additional attorney’s fees to his wife. We agree and sustain such points.

Since the opinion in Great American Reserve Insurance Co. v. Britton, 406 S.W.2d 901, 907 (Tex.1966), our courts have held that the reasonableness of attorney’s fees is a question of fact and must be supported by competent evidence just as any other fact issue. The only evidence on this issue here was a general statement of petitioner’s attorney suggesting the amount of the fee. He did not state the time he had spent in preparation and trial of the case nor did he testify as to any of the other commonly accepted elements of fact going to make up a reasonable fee. Thus, we sustain the point under consideration.

The judgment of the trial court granting the divorce and dividing the property of the parties is affirmed. The issue of attorney’s fees of petitioner’s counsel is severed and, as to said issue, the cause is remanded. Costs of appeal are divided between the parties equally.

Affirmed in part and in part reversed and remanded.

STEPHENSON, J., not participating.

      . “The Court erred in allowing Appellant to file the record after the time for filing had elapsed, no good cause having been shown by Appellant.”

      . It may be that the Second Court of Civil Appeals in Fort Worth will follow Sloan v. Passman, supra. Three brief per curiam opinions were released by that court in early September, 1976, although none are precisely in point with the case now under consideration. See Russell v. Truitt; Pressley v. Royal Indemnity Co., and Cunningham v. State Board of Insurance, etc. Each of these opinions was delivered in connection with an interlocutory motion and are not yet reported except in 1 Texas Court Reporter 625-626.
      See also the opinion of the Corpus Christi Court handed down on October 7, 1976, In the Matter of M.A.G., a Child, 541 S.W.2d 899 (1 T.C.R. 832), aligning that court with the dissent in Sloan v. Passman, supra.


author: BISSETT, Justice.

text:
    SOUTH PADRE DEVELOPMENT CO., INC., et al., Appellants, v. REALTY GROWTH INVESTORS et al., Appellees.
    No. 1167.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 21, 1976.
    Rehearing Denied Dec. 2, 1976.
    John D. VanKleef, Rollins M. Koppel, Harlingen, for appellants.
    William Fred Hagans, Bracewell & Patterson, Houston, for appellees.
   OPINION

BISSETT, Justice.

The question to be determined is whether, under Rule 386, T.R.C.P., the record in this case was timely, filed in this Court.

Final judgment was rendered on June 2, 1976. South Padre Development Company, Inc., et al. (SPDC), plaintiffs in the trial court, and American General Life Insurance Company (AGLIC), a defendant in the court below, each gave notice of appeal and timely filed appeal bonds. Realty Growth Investors (RGI), also a defendant in the trial court, did not appeal.

AGLIC filed a motion for new trial on June 14, 1976, which was later amended. The motion, as amended, was overruled on August 9,1976. It then filed a transcript in this Court on September 28, 1976 in an appeal that is independent from that attempted by SPDC. It (AGLIC) timely filed a motion for an extension of time within which to file the statement of facts. The motion was granted by this Court on October 14, 1976.

SPDC did not file a motion for new trial. Therefore, the 60-day period for SPDC to file the record in this case expired on August 2, 1976, absent the timely filing (and granting) of a motion for an extension of time pursuant to Rule 21c, T.R.C.P.

RGI filed a motion in this Court on September 8, 1976 to affirm on certificate. It was stated therein:

“More than sixty (60) days have elapsed since the judgment was signed and more than fifteen (15) days have elapsed since the last date on which the transcript and statement of facts could be filed. The Appellants have not filed the transcript and statement of facts, and the Appellants have not filed a motion to extend the time in which to file the transcript and statement of facts. Therefore, the Appellants have failed to file a transcript of the record in the proper time, and RGI is now entitled to have the judgment below affirmed insofar as it relates to RGI.”

On September 17, 1976 SPDC filed the transcript in this Court, together with an accompanying motion denominated “Appellant’s Motion for Extension of Time on Appeal”, which motion, in part, stated:

“I.
This Motion is filed within the time requirements as set forth in Rule 21c, Texas Rules of Civil Procedure. The last date for timely filing the Transcript and Statement of Facts in this appeal is October 4, 1976, and the date of this filing is within fifteen (15) days of the aforementioned deadline.
II.
The inability to timely file the Statement of Facts in this cause can be explained by the Certificate of Mr. Jimmy Eaves, Official Court Reporter of the 107th Judicial District Court, wherein he states that because of the length of the record, it was impossible to transcribe the same in the time period required under the Texas Rules of Civil Procedure. It further states that Mr. Eaves expects the Statement of Facts to be completed between November 15 and December 1 of 1976. . .

SPDC, in certain objections filed in this Court on October 12, 1976 again asserted that it timely perfected its appeal on September 17, 1976, and, for the first time, stated:

“In the alternative, if it is shown unto the Court that this Appellant failed to timely file its transcript, this Appellant would show that under Rule 21c of the Texas Rules of Civil Procedure (1976) that this Court has the discretion to accept such filing as timely filed. This Court would be within its discretion in allowing such filing since this Appellant has presented to the Court an explanation which is reasonable, as of a matter of law. In this connection, attached hereto is the Affidavit of Josephine Dunkelberg as Exhibit ‘A’, which is incorporated herein by reference as if the same were fully and at large set forth at this point, which indicates that the transcript was requested on June 29, 1976; that such transcript is in excess of 1,400 pages; and that it was completed on September 17, 1976, subsequent to the ruling by the Court on the amended Motion for New Trial filed by American General Life Insurance Company of Delaware. . . .”

Rule 386, T.R.C.P., requires that the record in an appeal be filed in the Court of Civil Appeals “within sixty days from the rendition of the final judgment or order overruling motion for new trial”.

Rule 21c, T.R.C.P., provides:

“The failure of a party to timely file a transcript, statement of facts, motion of rehearing in the court of civil appeals or application for writ of error, will not authorize a dismissal or loss of the appeal if the defaulting party files a motion reasonably explaining such failure in the court whose jurisdiction to make the next ruling in the case would be affected by such failure. Said motion must be filed within fifteen (15) days of the last date for timely filing provided in the applicable rule or rules sought to be avoided, although it may be acted upon by the court at a date thereafter.”

The contention by SPDC that the last date for filing the record in this appeal “is October 4,1976” cannot be sustained. It is well settled that an appellant must perfect his own appeal, and may not rely on another appellant’s actions. Angelina County v. McFarland, 374 S.W.2d 417 (Tex.Sup.1964); Corpus Christi Theatres, Inc. v. Vasquez, 457 S.W.2d 382 (Tex.Civ.App.—Corpus Christi 1970, no writ). The required time for SPDC to file the record in its appeal is in no way affected or extended by the motion for new trial filed by AGLIC and the action by the trial court thereon.

Rule 21c furnishes the only way whereby the 60-day period for filing the record in the Court of Civil Appeals may be extended. Under that Rule, the appellant must file a motion no later than 15 days after the 60-day period expires “reasonably explaining” the reason why the record was not filed within the time limit imposed by Rule 386. The use of the word “must” makes the requirement that the motion be filed within the 15-day period mandatory. Such a motion which is filed after the 15-day period has expired is too late.

The question of whether SPDC has “used due diligence in attempting to timely file the record” is not before this Court in this appeal, as argued by SPDC in its brief. The question to be determined in this appeal is not whether “reasonable explanation” is shown for SPDC’s failure to file the record within 60 days after the date final judgment was rendered, as insisted by SPDC. Instead the issue to be resolved is whether there has been compliance with the mandatory provision of Rule 21c that the motion be filed within 15 days after the date the judgment was signed.

Since SPDC did not file a motion for new trial, the 60-day period for the filing of the record expired on August 2, 1976. Rule 386, supra. The time during which SPDC could have filed a motion under Rule 21c to extend the time within which to file the record expired on August 17, 1976. That was not done. The transcript and the accompanying motion for extension of time to file the statement of facts was filed on September 17, 1976. That is too late to invoke the appellate jurisdiction of this Court in this appeal. SPDC did not timely file a motion to extend the time for filing either the transcript or the statement of facts. See Cousins v. Brown, 539 S.W.2d 233 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ history on date of this opinion).

The motion for affirmance on certificate fully complies with the requirements of Rule 387, T.R.C.P., and should be granted. RGI is entitled to have the judgment of the trial court affirmed insofar as the judgment relates to it (RGI).

The judgment of the trial court insofar as it determined and disposed of the controversy between SPDC and RGI is AFFIRMED.


author: WARD, Justice.

text:
    Robert D. JONES et ux., Appellants, v. GENERAL ELECTRIC COMPANY et al., Appellees.
    No. 6531.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 3, 1976.
    Rehearing Denied Nov. 24, 1976.

      Tinsman & Houser, Inc., Robert D. Sohn, San Antonio, for appellants.
    Beckmann, Stanard & Olson, Melvin A. Krenek, House, Mercer, House, Brock & Wilson, David B. Person, Groce, Locke & Hebdon, Ray Weed, J. Michael Myers, Wiley, Plunkett, Gibson & Allen, Lewin Plunk-ett, Daniel Diaz, Jr., San Antonio, for appel-lees.
   OPINION

WARD, Justice.

This is an appeal from summary judgment granted in favor of Defendants. Appellants, Robert D. Jones and his wife, Patricia Jones, filed suit for damages resulting from a fire which destroyed their home. Heating unit defects were alleged to have caused the fire, and the home builder together with the manufacturer, distributor, and installer of the heating unit were all joined as Defendants. The Defendants filed motions for summary judgment and all motions were granted. We reverse the judgment of the trial Court and remand the case for trial.

The house was constructed, and the heater was installed in December, 1969. The fire occurred January 26, 1972, when Mr. Jones found the heating unit in his attic engulfed in flames, and this resulting suit for damages was filed in September, 1973. The heating unit had been installed in the Jones’ home by the Appellee, McCarley Company, Inc. The unit was manufactured by the Appellee, General Electric Company, and distributed by the Appellee, Campbell-Ince Distributors, Inc. The Appellee, Eugene P. Flaig, was the builder and contractor of the house in question, and he had retained the services of McCarley Company, Inc., to install the heating unit on the premises. The Plaintiffs alleged that each Defendant had warranted that the heating unit was constructed and installed in the dwelling in a good and workmanlike manner, and that each Defendant had breached a warranty of good workmanship. The Plaintiffs also alleged that the Defendants were negligent in the construction, manufacture, and installation of the heating system, which negligence was a proximate cause of the fire. Finally, the Plaintiffs alleged the theory of res ipsa loquitur in that this was an instance that does not occur without negligence and that at all material and critical times thereto the heating unit in question was under the care, management, and control of each of the respective Defendants.

After extensive discovery, each of the Defendants filed motions for summary judgment, each asserting that there was no genuine issue as to any negligence, breach of warranty, or strict liability, that “no one has been able to determine what caused the fire,” and because of this, each of the Defendants alleged that there was no genuine issue of fact existing against them, and that as a matter of law they were each entitled to summary judgment.

The summary judgment proof consisted of the pleadings, various affidavits, two depositions of Mr. Jones, written interrogatories propounded by the Defendants to Mr. Jones and the answers thereto, the deposition of Frances G. Schmid of the Texas Laboratory, who was described by the Plaintiff as being his expert, and the deposition of Fire Marshall A. G. Campa, who was described by the Plaintiff as having investigated the fire and who could describe the pertinent defects. Summary judgment proof established that after the fire, none of the essential working parts of the heating unit were preserved because of the damage caused by the fire. The two witnesses, who Mr. Jones testified he would use to prove his allegations, both stated that they could not determine the cause of fire, they could not determine if the unit was defective or if it had caused the fire, and doubted if anyone could make that determination in view of the condition of the unit. A summary of the testimony of the Plaintiffs and of the admissions made was that they did not know the cause of the fire, of any defects in the heating unit, of any malfunction of the unit, or of any specific acts of negligence.

The Appellants, by one general and three specific points of error, urge that each Ap-pellee has failed to discharge the summary judgment burden, as announced in Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). There, the plaintiff failed to present evidence to raise a fact issue that the ball joint unit was defective at the time if left the defendant’s factory, and the Court pointed out that it was immaterial as to whether or not the plaintiff presented evidence. The question was not whether the summary judgment proof raised fact issues with reference to the essential elements of the plaintiff’s cause of action, but was whether the summary judgment proof established as a matter of law that there was no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action.

The recent case of Allen v. Bentley Laboratories, Inc., 538 S.W.2d 857 (Tex.Civ.App.—San Antonio 1976, writ ref’d n. r. e.), is decisive. There, the Court pointed out that the testimony of the plaintiff did not establish as a matter of law that the defendants were not negligent, but merely that the plaintiff did not know of any evidence at that time which would establish negligence. The Court stated at page 860:

“ * * * Although appellants would have the burden of raising fact issues as to negligence and proximate cause at the trial on the merits or suffer an instructed verdict, the burden was upon appellees as movants in the summary judgment proceeding to show as a matter of law that appellants’ case was without merit. This was not done, and the trial court erred in sustaining appellees’ motion based on appellants’ lack of proof at such time of negligence or proximate cause.”

In a recent products liability suit, the request for admissions revealed that the plaintiff did not know and had no proof that either of the products sold by the respective defendants in fact caused his damages. Again, the distinction was made between the burden of proof upon the summary judgment and the instructed verdict stage with the result that the summary judgment was reversed. Smith v. Ortman-McCain Company, 537 S.W.2d 515 (Tex.Civ.App.—Austin 1976, writ ref’d n. r. e.).

Appellees argue that for two years they have pursued every possible avenue known in the discovery process to determine just what the basis of the cause of action is, and their efforts add up to the one conclusion that the Appellants cannot show any cause of action. While this may be true on motion for instructed verdict, the Appellees have yet to prove at this time that the Appellants have admitted they have no cause of action which would permit the summary judgment.

Somewhat similar is the situation where the summary judgment has been used to secure a dismissal because a plaintiff’s pleadings have failed to state a cause of action. The Supreme Court has held that the protective features afforded by the special exception practice are not to be circumvented by the motion for summary judgment. Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974). It is only where a plaintiff’s pleadings affirmatively deny the cause of action that the exception exists for granting the summary judgment. Goettee v. McConnell, 535 S.W.2d 396 (Tex.Civ.App.—Beaumont 1976, no writ).

By comparison, the Appellees in the present case, having stated that they have exhausted their discovery process to determine the cause of action, are using the summary judgment practice to secure a dismissal of the suit, which is a severe form of sanction which may or may not lie under the discovery rules. Rules 170 and 215a(a), Tex.R.Civ.P.

The judgment of the trial Court as to all parties is reversed and the cause is remanded for trial.


text:
    James HUGHES, Appellant, v. Tom JONES and Hress Jones, Appellees.
    No. 6558.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 3, 1976.
    Witherspoon, Aikin & Langley, James W. Witherspoon, Marion J. Craig, III, Hereford, for appellants.
    Dan Sullivan, Andrews, for appellees.
   OPINION

WARD, Justice.

This is an appeal from the granting of a default judgment. Defendant seeks reversal on grounds, among others, that the judgment was based upon unliquidated damages; that the testimony at the trial was not recorded, and no statement of facts is available for review regarding the sufficiency of the evidence on the question of damages; and, finally, that the Defendant, in his motion and on the hearing for the new trial, met the test established in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (Tex.Comm’n App. 1939, opinion adopted). We reverse the judgment and remand the case for a new trial.

This suit was filed by the Appellees, Tom and Kress Jones, who alleged they had been employed by Kent Evans by oral contract to operate a ranch; that thereafter Appellant, Jim Hughes, acquired the ranching operations and continued the employment of the two Appellees; that the Appellees had secured labor liens on the Appellant’s cattle on the ranch and they sought their damages, foreclosure of their liens, attorney’s fees, and a temporary restraining order prohibiting the Defendant from removing the cattle. The Defendant failed to answer after proper service and judgment by default was rendered in favor of Tom Jones in the amount of $3,006.20, and in favor of Kress Jones in the amount of $1,700.00. Motion for a new trial was timely filed, and, at the hearing, the court reporter testified that no record of the default proceedings was made, and this fact was also stipulated to by the attorney for the Plaintiffs. The motion for a new trial was overruled and this appeal was perfected.

Appellant presents points that he is entitled to a reversal because of insufficiency of evidence to support the judgment, and he is unable to obtain a statement of facts from the official court reporter. He relates that this accords him the mandatory right to a new trial under the authority of Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App.—Dallas 1975, writ ref’d). The Appellees contend the authority is inapplicable as here the default admitted the allegations of damages as the default judgment expressly found that the cause of action was liquidated and was proven by an instrument of writing. Tex. R.Civ.P. 241. The petition of the Appellees was sworn to, and therein the terms of the employment contract were set out at $600.00 to each Plaintiff, together with $100.00 a month for furnishing a pickup truck. It was further alleged that they were paid fully until August 13, 1975, when the Appellant defaulted, and that there accrued in back wages to each Appellee the sum of $1,700.00 and the sum of $1,306.20 to Appellee Tom Jones for the pickup expenses and other ancillary expenses arising from the operation of the ranch. The Ap-pellees contend that the claim is therefore liquidated and, under the terms of Rule 241, is proven by the sworn petition which satisfies the requirement that it be proven by an instrument in writing.

We hold that Rule 241 does not apply as nowhere can the amount of damages be accurately calculated by the Court or under its direction from the allegations contained in the Plaintiff’s petition. Further, we hold that the sworn petition is not the written instrument contemplated by Rule 241. Freeman v. Leasing Associates, Inc., 503 S.W.2d 406 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ). As stated in this authority:

“ * * * To hold otherwise would mean that there would be no check upon the accuracy of a plaintiff’s claim in a default proceeding.”

The recent case of Hall v. C-F Employees Credit Union, 536 S.W.2d 266 (Tex.Civ.App.—Texarkana 1976, no writ), was a suit upon promissory notes. That claim was held to be unliquidated as it would require the presentation of evidence on the balance due, even if there was no dispute as to liability. Even with promissory notes present, the generalizations made by the plaintiff in his petition as to the balance due were held insufficient under Rule 241 to allow the Court to calculate the amounts due without further proof.

Since the claim before us was unliquidat-ed, the trial Court had to have heard evidence as to damages. Tex.R.Civ.P. 243. As a consequence, without a statement of facts the sufficiency of the evidence to support the finding of damages cannot be determined, and the Appellant is entitled to a reversal because of the lack of a record of the evidence heard. Morgan Express, Inc. v. Elizabeth-Perkins, Inc., supra. The Appellant’s points in this regard are sustained.

The motion for a new trial filed by the Appellant alleges in detail that the failure to answer was not intentional but was inadvertent; that the failure resulted from mistakes upon the part of the Appellant’s attorneys in Andrews and in Hereford; that the Appellant had a meritorious defense and that the granting of the motion would not cause delay in a trial of the case. The motion was sworn to, was supported by affidavits, and testimony was produced regarding all allegations at the hearing on the motion for a new trial. After overruling the motion, the trial Court filed findings of fact and conclusions, and one fact finding was to the effect that the Hereford attorney had no explanation of why he did not file an answer in behalf of the Defendant, Jim Hughes. A series of points are presented by the Appellant challenging this finding and the resulting action of the Court in not granting a new trial. Crad-dock v. Sunshine Bus Lines, supra, sets out the rule as to whether a default judgment should be set aside:

“ * * * A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. * * *

The question in the present case is whether because of inadvertence and mistake an excuse existed for not timely filing an answer. All other requirements of the Rule were met. The Appellant testified that when he received the suit papers, he knew that an answer had to be filed and that he forwarded them to his attorney in Hereford. Local attorneys in Andrews were then contacted, and they devoted their time and attention to securing the release of the cattle from the terms of the temporary restraining order. They were successful in releasing the cattle by filing a bond in the case. They did not file an answer as they expected the answer to be filed by the Hereford attorney. The Hereford attorney testified that he had filed answers for the Appellant in some four other eases; that when he was contacted regarding the suit in District Court in Andrews County, he contacted the local counsel there regarding the release of the cattle from the terms of the temporary restraining order; and that at that time he assumed that an answer would be filed in the suit by local counsel at Andrews. He admitted that he could not say why he made that assumption. We hold that the failure to file the answer under the testimony here was due to inadvertence or oversight, and that it was not the result of conscious indifference on the part of the Hereford attorney. All recent opinions indicate that the trial Court’s discretion, concerning the granting of the new trial, should be exercised liberally where there is any showing that the defendant has not intentionally or with conscious indifference ignored his obligation to answer or to appear. 4 McDonald, Texas Civil Practice, See. 18.10.2, 269 (1971); Ward v. Nava, 488 S.W.2d 736 (Tex.1972); Continental Airlines, Inc. v. Carter, 499 S.W.2d 673 (Tex.Civ.App.—El Paso 1973, no writ); and Western Union Telegraph Company v. McGinnis, 508 S.W.2d 147 (Tex.Civ.App.—San Antonio 1974, no writ). We hold under the record and the directions contained in the Craddock case that the trial Court abused its discretion in failing to grant the Defendant’s motion for a new trial.

Other points presented by the Appellant are not reached. For the reasons stated, the judgment of the trial Court is reversed and the cause is remanded for a trial on the merits.

PRESLAR, C. J., not sitting.