author: MORRISON, Judge. DOUGLAS, Judge ODOM, Judge

text:
    Eric Charles HIXON, Appellant, v. The STATE of Texas, Appellee.
    No. 49292.
    Court of Criminal Appeals of Texas.
    June 4, 1975.
    Eric Charles Hixon, pro se.
    Carol S. Vance, Dist. Atty., James C. Brough and David Crump, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is sale of merchandise on city sidewalks in violation of Section 41-10, Houston City Ordinances; the punishment, a fine of $150,00.

The record reflects that on November 23, 1973, appellant sold jewelry on a sidewalk in a downtown area of Houston. In this appeal, appellant contends that he was authorized to sell merchandise on the Houston streets and sidewalks under Section 22-1, Houston City Ordinances, as an itinerant vendor. Section 22-1 provides, in part:

“Itinerant Vendor. The term ‘itinerant vendor’ means and includes, and shall be construed to mean and include, all persons as well as their agents and employees, who engage in temporary or transient business in the city of selling or offering for sale any goods or merchandise, or exhibiting the same for sale, or exhibiting the same for the purpose of taking orders for the sale thereof, and who, for the purpose of carrying on such business or conducting such exhibits thereof, display, exhibit, sell or offer for sale such goods or merchandise upon or from a truck or other vehicle on the streets. of the city, or who hire, rent, lease or occupy any room or space in any building, structure, other enclosure, vacant lot or any other property whatever in the city in, through or from which any goods or merchandise may be sold, offered for sale, exhibited for sale or exhibited for the purpose of taking orders for the sale thereof, or who shall sell or offer for sale any goods or merchandise while upon the property of another, without the express written consent of the owner or occupant thereof. Provided, however, the term ‘itinerant vendor’ as defined herein shall not include or be construed to include anyone engaged in interstate commerce or anyone upon whom the provisions of the following sections would impose a direct and unlawful burden on interstate commerce.”

Section 22-1, Houston City Ordinances, is expressly limited to persons who sell merchandise from a “truck or other vehicle on the streets of the city, or who hire, rent, lease, or occupy any room or space in any building, structure, or other enclosure, vacant lot or any other property whatever in the city.” We conclude that Section 22-1 does not authorize the sale of merchandise on sidewalks of the city.

In his next ground of error appellant contends that Section 41-10, Houston City Ordinances, violates the equal protection clause of the Fourteenth Amendment. He urges that there is no rational justification for the exemption of flower and ice cream vendors from the prohibition against sidewalk sales of merchandise under Sections 41-10 and 41-10.1, Houston City Ordinances ; Section 41-10 provides:

“It shall be unlawful for any person to expose for sale or to sell on any sidewalk, street, parkway, esplanade or any other property open or devoted to public use in the city any fruits, vegetables, nuts, candies, cigars, tobacco, soda water, or any foodstuffs of any nature whatsoever, or any other goods, wares, or merchandise, either exposed or enclosed in boxes, crates, barrels, baskets or any other container. It shall further be unlawful to erect, construct, build, maintain or occupy any booth, stand or other structure, either permanent or temporary, upon any sidewalk, street, parkway, esplanade or other property open or devoted to public use for the purpose of carrying on or furthering any private business, enterprise, calling, vocation or profession. This provision shall not apply to any person selling frozen desserts from sanitary vehicles approved by the director of public health under section 19-550 of this Code, . .”

Section 41-10.1, Houston City Ordinances, provides:

“(a). Section 41-10 hereof shall not apply to any person who has obtained a license for the sidewalk sale of flowers to pedestrians and who complies with the provisions of this section regulating the sale of such flowers.”

Viewing these ordinances together, we are confronted with a statutory scheme which makes selling of all goods upon the sidewalk unlawful except the sale of flowers and ice cream. We must here determine if the city is authorized under its police power to exempt these two items of merchandise without violating the equal rights of those who wish to sell anything else.

Section 22-1 of the Houston City Ordinances does not totally prohibit the carrying on of legitimate trade by itinerant vendors. It simply provides that they must obtain a license and that the merchandise must be sold from a truck or other vehicle on the streets or from an enclosure or vacant lot. The prohibition goes only to selling directly from the sidewalk.

At the outset we observe that a sidewalk is part of the street and subject primarily to the control of the city rather than the abutting property owners. Richardson v. Walsh, Tex.Civ.App., 292 S.W.2d 855.

Pursuant to its police power, a city is authorized to enact ordinances tending to promote the general welfare of the public in the use of the streets and sidewalks. Since the basic purpose of a sidewalk is to afford a way to public pedestrian traffic, it is in the interest of the public welfare for obstacles and impediments to this traffic to be reasonably limited.

The legislative body has a right to make a classification or create a class for the purpose of serving legitimate aims if the limits of the class are not unreasonable or arbitrary. Ex parte George, 152 Tex. Cr.R. 465, 215 S.W.2d 170. The Court in B & B Vending Company v. City of El Paso, 408 S.W.2d 545, stated:

“An ordinance may establish a classification so long as the classification is reasonable and applies equally to all persons who fall within the class.”

We cannot bring ourselves to conclude that the exemption of the sellers of flowers and ice cream is so unreasonable as to authorize this Court to strike down the legislation. Neither flowers nor ice cream are commodities within the same class as the articles which appellant was offering for sale.

In City of Chicago v. Rhine, 363 Ill. 619, 2 N.E.2d 905, the Illinois Supreme Court was confronted with an ordinance which prohibited sales of any articles except daily newspapers within a certain area of the city. The defendant in that case was a magazine vendor. The court noted that no one had an inherent right to operate his business in the streets of the city. They further stated: “[The fact] that someone else is given the privilege of selling newspapers (a commodity not within the same class as the article the defendant was exposing and offering for sale) did not constitute an unconstitutional discrimination against him.”

As written, the ordinance in the case at bar affects all people engaged in the same business (all itinerant vendors not engaged in flower or ice cream sales) equally under like conditions.

In addressing the problem of reasonableness of classification of street vendors as to the type of products which they might be licensed to sell, the Supreme Court of Washington in McKnight v. Hodge, 55 Wash. 289, 104 P. 504, said:

“Reasons quite satisfactory to some minds could be advanced for exempting peddlers of farm products from the license law, and the same can be said of vendors of books, periodicals, and newspapers; while on the other hand, there may be room for argument to the contrary. We refer to reasons and argument relating to some legitimate purpose of the law. The very fact that there is room for honest difference of opinion in this respect shows that it is a question of policy and not of power in the Legislature to pass the law. We are of the opinion that a license law such as this, whether its object is regulation or revenue, is «not a grant of privileges or immunities to a class of citizens which, upon the same terms, do not equally belong to all, because it classifies peddlers with reference to the different kind of goods they sell.”

The city apparently had legitimate aims in the creation of classifications to determine which businesses could operate on the sidewalks, such as limitation of obstructions to pedestrian traffic. After reviewing the record, it is apparent that the appellant in the case at bar has not met his burden of proving that an improper basis for discrimination was utilized or that the classifications as made were arbitrary or unreasonable in light of the purposes to be served by them. City of Clute v. Lins-comb, Tex.Civ.App., 446 S.W.2d 377.

Finding no reversible error, the judgment is affirmed.

DOUGLAS, Judge

(concurring).

I concur that the judgment should be affirmed but for the following reasons.

The conviction is for sale of merchandise on city sidewalks in violation of Section 41-10, Houston City Ordinances.

The record reflects that on November 23, 1973, appellant sold jewelry on a sidewalk in the downtown area of Houston.

He contends that he was authorized to sell merchandise on the Houston streets and sidewalks under Section 22-1, Houston City Ordinances, as an itinerant vendor. That section is expressly limited to persons who sell merchandise from a “truck or other vehicle on the streets of the city, or who hire, rent, lease or occupy any room or space in any building, structure, or other enclosure, vacant lot or any other property whatever in the city.” It does not authorize the sale of merchandise on sidewalks of the city.

Appellant next contends that Section 41-10, Houston City Ordinances, violates the equal protection clause of the Fourteenth Amendment. He urges that there is no rational justification for the exemption of flower and ice cream vendors from the prohibition against sidewalk sales of merchandise under Sections 41-10 and 41-10.1, Houston City Ordinances. Section 41-10 provides:

“It shall be unlawful for any person to expose for sale or to sell on any sidewalk, street, parkway, esplanade or any other property open or devoted to public use in the city any fruits, vegetables, nuts, candies, cigars, tobacco, soda water, or any foodstuffs of any nature whatsoever, or any other goods, wares, or merchandise, either exposed or enclosed in boxes, crates, barrels, baskets or any other container. It shall further be unlawful to erect, construct, build, maintain or occupy any booth, stand or other structure, either permanent or temporary, upon any sidewalk, street, parkway, esplanade or other property open or devoted to public use for the purpose of carrying on or furthering any private business, enterprise, calling, vocation or .profession. This provision shall not apply to any person selling frozen desserts from sanitary vehicles approved by the director of public health under section 19-550 of this Code, . . . ”

Section 41-10.1, Houston City Ordinances, provides:

“(a). Section 41-10 hereof shall not apply to any person who has obtained a license for the sidewalk sale of flowers to pedestrians and who complies with the provisions of this section regulating the sale of such flowers.”

A serious question about the justification for the exemption of flower and ice cream vendors is raised. See Dukes v. City of New Orleans, 501 F.2d 706 (5th Cir. 1974), and the cases there cited. However, it is not necessary to decide whether Section 41-10 is unconstitutional. Assuming that appellant was in an area of the city permitting the sale of flowers and ice cream and assuming, without deciding, that a different treatment afforded ice cream and flower vendors under Sections 41-10 and 41-10.1 violates the equal protection clause of the Fourteenth Amendment, appellant as well as ice cream and flower vendors would be subject to prosecution under Section 41-10.

In Delorme v. State, 488 S.W.2d 808 (Tex.Cr.App.1973), this Court wrote:

“It is the duty of the court, if it can be done, to construe a statute so that it will remain valid. Where a statute contains words or provisions which are valid and others which are not, effect should be given to the valid words and provisions by separating them from the invalid ones. Ohio Oil Company v. Giles, 149 Tex. 532, 235 S.W.2d 630 (1950); Zwernemann v. Von Rosenburg, 76 Tex. 522, 13 S.W. 485 (1890); and Ex parte Towles, 48 Tex. 413. If the unconstitutional or void portion of any statute be stricken out and that which remains is complete in itself and capable of being executed in accord with the apparent legislative intent, wholly independent of that portion which is rejected, the statute must be sustained. Salas v. State, 365 S.W.2d 174 (Tex.Cr.App. 1963). This is true, even though the statutory enactment contains no severa-bility clause. Salas v. State, supra, and Gilderbloom v. State, 160 Tex.Cr.R. 471, 272 S.W.2d 106 (1954).”

See also Tussey v. State, 494 S.W.2d 866 (Tex.Cr.App.1973); Ex parte Rubin, 362 S.W.2d 331 (Tex.Cr.App.1962); Fletcher v. State, 439 S.W.2d 656 (Tex.Sup.Ct. 1969); State v. Scott, 460 S.W.2d 103 (Tex. Sup. Ct.1970).

In Ex parte Matthews, 488 S.W.2d 434 (Tex.Cr.App.1973), the contention was made that he, Matthews, was denied equal protection of the law because there was a different age requirement between males and females for their treatment as juveniles. This Court held that such disparity was unconstitutional but there was another statute under which both males and females over the age of fifteen years could be prosecuted. See Chase v. State, 508 S. W.2d 605 (Tex.Cr.App.1975).

Section 41-10 is not dependent upon the exemption of flower and ice cream sales from the prohibition against the sale of merchandise on Houston sidewalks. By deleting the language referring to the sale of “frozen desserts from sanitary vehicles” in Section 41-10 and excising 41-10.1, every person is prohibited from selling merchandise on Houston sidewalks. The remainder of Section 41-10 is complete and capable of being enforced in accordance with the intent of the Houston City Council. Thus, appellant was subject to prosecution under Section 41-10, Houston City Ordinances.

ODOM, Judge

(concurring).

I concur in the majority’s disposition of this cause, but find their analysis of appellant’s first ground of error incomplete.

Appellant was convicted for selling jewelry on a sidewalk in the downtown area of Houston. He had an itinerant vendor’s license issued under Chapter 22 of the Houston Code of Ordinances. He was convicted because his sales under authority of that license were held in violation of Section 41-10, Houston Code of Ordinances. The majority improperly hold that Chapter 22, standing alone, does not license sale of merchandise on city sidewalks. That chapter authorizes itinerant vendors to follow their trade, as defined in Section 22-1, when duly licensed under its provisions, and makes it unlawful for an itinerant vendor to do so without such a license.

Itinerant vendor is defined in Section 22-1 as follows:

“The term 'itinerant vendor’ means and includes, and shall be construed to mean and include, all persons, as well as their agents and employees, who engage in temporary or transient business in the city of selling, or offering for sale, any goods or merchandise, or exhibiting the same for sale, or exhibiting the same for the purpose of taking orders for the sale thereof, and who for the purpose of carrying on such business, or conducting such exhibits thereof, display, exhibit, sell or offer for sale such goods or merchandise upon or from a truck or other vehicle on the streets of the city, or who hire, rent, lease or occupy any room or space in any building, structure, other enclosure, vacant lot or any other property whatever in the city in, through or from which any goods or merchandise may be sold, offered for sale, exhibited for sale or exhibited for the purpose of taking orders for the sale thereof, or who shall sell or offer for sale any goods or merchandise while upon the property of another, without the express written consent of the owner or occupant thereof. Provided . . .” (Emphasis added.)

The majority’s analysis of the scope of Sec. 22-1 is incomplete in that it ignores the language beginning with the third pair of emphasized words, which incorporates within the definition of itinerant vendors those otherwise qualifying “who shall sell or offer for sale any goods or merchandise while upon the property of another, without the express written consent of the owner or occupant thereof.” Certainly this would include the city sidewalks. Indeed, to hold that the city sidewalks are not within the scope of the ordinance, as the majority suggest, would be to hold that absent a prohibition such as that in Section 41-10 no itinerant vendor’s license would be required for sale of goods on the sidewalks. It is clear to me that the vendor would not be able to avoid the license fee by moving his goods from the privately owned vacant lot to the adjacent sidewalk, yet this is what the majority’s reasoning would permit. Clearly, the conduct engaged in by appellant, if not otherwise prohibited by law, was within the scope of the itinerant vendor’s licensing ordinance.

Appellant cites 53 Tex.Jur.2d, Statutes, Section 161, for the proposition:

“In case of conflict between a general provision and a special provision dealing with the same subject, the former is controlled or limited by the latter, since a specific statute more clearly evidences the intention of the legislature than a general one. . . .”

The proposition of law is a sound one. Appellant would have us apply it to give effect to Chapter 22 in any conflict with Section 41-10. That section prohibits sale of foodstuffs, goods, wares, and merchandise (with the two exceptions of ice cream and flowers) “on any sidewalk, street, parkway, esplanade or any other property open or devoted to public use in the city. .” In my opinion it is Section 41-10 that is the special or limited provision. It prohibits sales in certain limited places, whereas Chapter 22 addresses places where itinerant vendors are licensed to make sales in broad general language. While the specifically designated places enumerated in Sec. 41-10 are within the scope of the general categories listed in Chapter 22, it is clear that Chapter 22 addresses them only as within the general categories there stated, while Sec. 41-10 is speaking narrowly and specifically to the sidewalks, roadways, and property open and devoted to public use. Even if the last category be broad or vague (an issue not presented in this case), Sec. 41-10 is clearly the special provision and controls. An itinerant vendor’s license does not authorize one to violate ordinances prohibiting sales in specific areas otherwise available for transacting such business.

I therefore concur in the overruling of this ground of error.

I must express the reasons for my disagreement with my brother Douglas’ analysis of appellant’s equal protection argument. He relies on the following principle stated in Delorme v. State, 488 S.W.2d 808, 811:

“It is the duty of the court, if it can be done to construe a statute so that it will remain valid. Where a statute contains words or provisions which are valid and others which are not, effect should be given to the valid words and provisions by separating them from the invalid ones. [Citations omitted.] If the unconstitutional or void portion of any statute be stricken out and that which remains is complete in itself and capable of being executed in accord with the apparent legislative intent, wholly independent of that portion which is rejected, the statute must be sustained. [Citations omitted.]” (Emphasis added.)

He does not give proper attention to the emphasized language. The statute addressed in Delorme prohibited desecration of the flag in various described ways. Each manner of desecration stated in the statute was a separate means by which the offense could be committed. It was the clear legislative intent to prohibit each means. Therefore, if there was a constitutional infirmity in the statutory description of one means, it could be severed and the remaining means continued in force with no violation of the legislative intent. The effect of such judicial action would be to narrow the effect of the statute in that it would narrow the scope of conduct prohibited by the terms of the statute.

On the other hand, if one element of a single offense is found constitutionally defective, the offense must fall, because to sever the single element would broaden the scope of the statute, prohibit new conduct not prohibited by legislative act, and violate the legislative intent. The courts would be creating a new offense, prohibiting conduct not theretofore an offense. The principle stated in Delorme, supra, does not contemplate such judicial legislation. A simple example will illustrate. Consider a statute prohibiting vulgar dancing in public. If “vulgar” were held unconstitutionally vague (see Courtemanche v. State, 507 S.W.2d 545), the inappropriate application of Delorme would “sever” it from the statute and leave the clear and unambiguous prohibition of dancing in public. The absurdity if manifest.

The Delorme principle has no application to Section 41-10, supra, in the manner suggested in the other concurring opinion.


source: Caselaw Access Project

author: BROWN, Commissioner.

license: Public Domain

text:
    Jimmie WOERNER, Appellant, v. The STATE of Texas, Appellee.
    No. 49965.
    Court of Criminal Appeals of Texas.
    May 21, 1975.

      R. Norvell Graham, Jr., San Antonio, for appellant.
    Ted Butler, Dist. Atty., Dick Ryman, Sharon MacRae and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

The conviction is for burglary with intent to commit theft; the punishment, assessed by the jury, nine (9) years, probated.

In appellant’s second ground of error, he contends the court erred in failing to shuffle the names of the panel of jurors assigned to the case.

At the beginning of the trial, after the State announced ready, appellant moved that the jury panel be quashed. Subsequent to the denial of this motion, appellant requested the court to reshuffle the jury panel and redraw. This was also denied.

The right to have the jury panel assigned to a case redrawn is clearly provided for in Art. 35.11, Vernon’s Ann.C.C.P. See Dynes v. State, Tex.Cr.App., 479 S. W.2d 676. The State contends that appellant has shown no harm as a result of being tried by a “non-random drawn jury.” We quote from Moore v. State, 132 Tex. Cr.R. 403, 105 S.W.2d 250, where this same problem was presented:

“ ‘It is no answer to this requirement of the statute to urge that no injury is shown; that appellant, by the means adopted, was furnished with a fair and impartial jury. We might go further, and say, according to this reasoning, the court might adopt any method outside of the statute which might secure a fair and impartial jury. The law has ordained a tribunal for the trial of criminal cases, and has provided the method of selecting a jury, and there is no authority to resort to any other method, and it is not incumbent on appellant to show that he suffered injury by the failure of the court to follow the statutory method.’ ”

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . Moore, supra, has been cited with approval in the following cases: De Joyas v. State, 141 Tex.Cr.R. 520, 150 S.W.2d 254; Rhodes v. State, 171 Tex.Cr.R. 384, 350 S.W.2d 651; Fontenot v. State, Tex.Cr.App., 379 S.W.2d 334.


author: GREEN, Commissioner.

text:
    Jose Angel TREVINO and Noe Silvas Trevino, Appellants, v. The STATE of Texas, Appellee.
    No. 50242.
    Court of Criminal Appeals of Texas.
    June 4, 1975.

      Bennie E. Ray, Brownsville, for appellant.
    Fred Galindo, Dist. Atty., and James R. Odabashian, Asst. Dist. Atty., Brownsville, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

Appellants Jose Angel Trevino and Noe Silvas Trevino, Jr., tried jointly before a jury on their pleas of guilty, were convicted of possession of a usable quantity of marihuana of more than four ounces. Punishment for each was assessed at five years.

In their sole ground of error, appellants contend that “The indictment was fatally defective in that it did not state specifically the amount of Marihuana involved to allow a plea in Bar should subsequent prosecution be instituted from the same offense.”

Appellants did not present this contention to the trial court, and filed no motion to quash the indictment, and this complaint is raised for the first time on appeal. Hence, only such contentions cognizable under Art. 27.08, Vernon’s Ann.C.C.P., to-wit, that the indictment fails to allege the constituent elements of the offense sought to be challenged, are before this Court. American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598; Terry v. State, Tex.Cr.App., 517 S.W.2d 554; Cox v. State, Tex.Cr.App., 523 S.W.2d 695, (1975).

The indictment alleges that on or about April 10, 1974, in Cameron County, Texas, appellants “did then and there knowingly and intentionally possess a usable quantity of marihuana of more than four ounces . . . ”

The offense is alleged to have occurred subsequent to the effective date of the Texas Controlled Substances Act, Art. 4476-15, Vernon’s Ann.Civ.Stat. of Texas, effective August 27, 1973. Sec. 4.05 of the article as applicable here reads:

“(a) Except as authorized by this Act, a person commits an offense if he knowingly or intentionally possesses a usable quantity of marihuana.
“(b) An offense under Subsection (a) of this section is:
“(1) a felony of the third degree if he possesses more than four ounces;
“(2) a Class A misdemeanor if he possesses four ounces or less but more than two ounces;
“(3) a Class B misdemeanor if he possesses two ounces or less. . . . ”

The indictment in the instant case followed the provisions of the above quoted statute, and sufficiently alleged in the terms of the statute the felony offense of possession of a usable quantity of marihuana of more than four ounces. See and compare Wirges v. State, Tex.Cr.App., 521 S.W.2d 251; Mears and Willis v. State, Tex.Cr.App., 520 S.W.2d 380; Wilson v. State, Tex.Cr.App., 520 S.W.2d 377. It is in substantially the language of the form of indictment for this offense approved in Morrison and Blackwell’s New Penal Code Forms, Sec. 4.05A, page 84. It alleges every fact which may affect the jurisdiction of the court and the degree or kind of punishment.

Appellants’ contention that the indictment for unlawful possession of marihuana must, under the Controlled Substances Act, allege the specific amount of marihuana possessed is without merit, and is overruled.

The judgment is affirmed.

Opinion approved by the Court.


author: DAVIS, Commissioner.

text:
    Hayward ALEXANDER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 49788.
    Court of Criminal Appeals of Texas.
    May 28, 1975.
    W. John Allison, Jr., on appeal only, Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell Tem-pleton and E. X. Martin, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for possession of heroin. After the jury returned a verdict of guilty, punishment was assessed by the court at life.

The indictment alleged the offense occurred on October 31, 1972, and the record reflects that trial began on January 16, 1973.

At the outset, appellant contends the court erred in denying his motion to shuffle the jury panel.

Article 35.11, Vernon’s Ann.C.C.P. provides :

“The trial judge, upon the demand of the defendant or his attorney, or of the State’s counsel, shall cause the names of all the members of the general panel drawn or assigned as jurors in such case to be placed in a receptacle and well-shaken, and the clerk shall draw therefrom the names of a sufficient number of jurors from which a jury may be selected to try such case, and such names shall be written, in the order drawn, on the jury list from which the jury is to be selected to try such case, and write the names as drawn upon two slips of paper and deliver one slip to the State’s counsel and the other to the defendant or his attorney.” [Emphasis added]

While the record leaves something to be desired from ■ the standpoint of clarity, it appears that appellant had announced ready, the jury panel was being seated in the courtroom, and jury lists had been prepared when the appellant presented his pro se motion to shuffle the jury panel and draw the names from a receptacle in accordance with Art. 35.11, V.A.C.C.P. The court overruled such motion, noting thereon “Not timely filed, Jury list prepared & jurors being seated before motion presented & same is not filed.”

In Overton v. State, Tex.Cr.App., 490 S.W.2d 556, the prosecutor first stated that there would not be a motion to shuffle. The opinion in Overton recites:

“However, the State’s attorney subsequently told the court, prior to the voir dire examination of the jurors, that there would be a motion to shuffle. [Emphasis appears in Overton opinion] Such motion was granted by the trial court, and the trial judge noted in the record that the motion was made prior to the seating of the jurors. The present situation is unlike the recent case of Griffin v. State, 481 S.W.2d 838 (Tex.Cr.App. 1972, wherein it was held that defense counsel was too late in filing his motion to shuffle the venire list when he did so only after unlimited questioning of the panel.”

This Court concluded in Overton that no violation of Art. 35.11, supra, was shown in the trial court granting the State’s motion to shuffle made prior to voir dire examination.

In Woerner v. State, 523 S.W.2d 717 (No. 49,965, 5-21-75), the defendant requested the jury panel assigned to the case be reshuffled after the State announced ready for trial, and such request was denied by the court. This Court reversed, stating: “The right to have the jury panel assigned to a case redrawn is clearly provided for in Art. 35.11, V.A.C.C.P.” Dynes v. State, Tex.Cr.App., 479 S.W.2d 676, was cited in Woerner. In Dynes, it was stated: “It, therefore, appears that under Article 35.11 [V.A.C.C.P.], and Gonzalez v. State [Tex.Cr.App., 468 S.W.2d 85], the appellant was entitled to have the names of those on the panel assigned to his case reshuffled.”

Article 35.11, supra, is silent as to what point in time in the trial of a case the trial judge must honor the request “of the defendant or his attorney, or of the State’s counsel” to shuffle.

In Griffin v. State, Tex.Cr.App., 481 S. W.2d 838, it was held not error to refuse defendant’s request to shuffle after twenty-two veniremen had been questioned. In Overton, it was held not to be error to grant the State’s request to shuffle made prior to the voir dire examination of the jurors. While the opinion in Overton recites that the trial judge noted that the motion was made prior to the seating of the jurors, the opinion places emphasis on the fact that the motion was made prior to the voir dire examination. The soundness of requiring such motion to be made before voir dire begins is apparent. To allow either party to request a shuffle of the names of the jury panel after voir dire begins would be disruptive and unduly prolong the trial. Further, it would permit such an election to be based upon information already elicited on voir dire. Clearly, this was not the intent of the legislature.

In the instant case, we cannot conclude that the fact the jurors were being seated and the list had been prepared relieved the trial judge of the duty to grant appellant’s “demand” to shuffle the jury panel when such “demand” was made prior to the beginning of voir dire examination. We do not deem it significant that appellant’s request for a shuffle of the panel did not bear a file mark. Article 35.11, supra, states “upon demand” of either party the trial judge shall cause such action to be taken. In the instant case, there is no question about the “demand” of appellant being brought to the court’s attention as evidenced by the judge’s notation on the request refusing same.

The error in refusing appellant’s demand is not rendered harmless by virtue of the fact that there is no showing that appellant was forced to take an objectionable juror. Woerner v. State, supra; Moore v. State, 132 Tex.Cr.R. 403, 105 S.W.2d 250; Fon-tenot v. State, 379 S.W.2d 334; Rhodes v. State, 171 Tex.Cr.R. 384, 350 S.W.2d 651.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: McDONALD, Chief Justice.

text:
    ASSOCIATES FINANCIAL SERVICES OF TEXAS, INC., Appellant, v. Wayne L. SOLOMON, Appellee.
    No. 5465.
    Court of Civil Appeals of Texas, Waco.
    May 22, 1975.

      Walters, Reed & Taylor, Wilson F. Walters, Patrick M. Reed, Denison, for appellant.
    Munson, Munson & Porter, Harry E. Kain, Denison, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellant Associates, from judgment decreeing its security interest lien, in certain beauty shop equipment, subordinate to appellee Solomon’s Landlord’s Lien.

Appellant Associates sued Glenn R. McCullough on a note given for money advanced for purchase of beauty shop equipment, plus attorney’s fees and possession of such beauty shop equipment pledged to secure payment.

Appellant also sued appellee Solomon, who was McCullough’s landlord, seeking possession of the beauty shop equipment. Appellant alleged Solomon converted such equipment, and sought damages for such alleged conversion.

Appellee cross claimed against McCullough for rent due under a lease.

Trial was before the court without a jury, which rendered judgment:

1) Appellant recover $5775.60 (plus interest and attorney’s fees) against McCullough.
2) Appellee recover $675. plus interest against McCullough (for three months rent).
3) Appellee Solomon has a valid lien on the beauty shop equipment (to the extent of $675. plus interest) which is superior to appellant’s lien.
4) Appellant has a valid lien on the beauty shop equipment (to the extent of $5775.60 plus interest and attorney’s fees), but subordinate to appel-lee’s lien.

Appellant appeals on two points contending the trial court erred:

1) In holding appellee Solomon’s lien superior to appellant’s lien.
2) In admitting the recording information of the Owner of Buildings Lien Affidavit in the Landlord Lien Records. We revert to contention 1.

Appellant advanced McCullough $5,775.-60 on- June 11, 1973, to purchase beauty shop equipment. McCullough on June 11, 1973, executed a note and Security Agreement for $24,949., such amount including the $5,775.60 plus balance due on prior advances.

McCullough executed Financing Statements to secure the obligation, but same did not list the beauty shop equipment. Such statements were filed on June 18, 1973.

On August 15, 1973, the beauty shop equipment was delivered to McCullough, and placed in appellee’s building, which McCullough leased and occupied.

On August 16, 1973, McCullough entered a lease with appellee which gave appellee a lien on all chattels on the premises to secure rent payment.

On December 13, 1973, appellee took possession of the premises. McCullough was in default of rent payment to appellee, and in default of note payments to appellant on such date.

On December 14, 1973, appellee refused appellant’s request for the beauty shop equipment.

On December 28, 1973, appellee made affidavit for Owner of Buildings Lien bond on the August 16, 1973, lease, and filed same in the Landlord Lien records of Grayson County on December 28,1973.

On January 28, 1974, appellant perfected a Financing Statement which properly described the beauty ' shop equipment and filed same in the required places.

Thus appellee’s Owner’s of Building Lien was filed prior to the time appellant’s security interest was perfected.

The Uniform Commercial Code does not deal with the relative priorities of a landlord's lien for rent, as against a secured party with respect to collateral kept at the recited premises. UCC Article 9 is expressly inapplicable to a landlord’s lien. Tex.Bus. and Comm.Code Sec. 9.104(2), V.T.C.A. It therefore appears that pre-code Texas law will be followed with respect to the priority of a landlord’s lien, as against a security interest arising under Article 9 of the Code as here. 51 Tex. Jur.2d p. 515.

When property is placed in a rented building by the tenant prior to recording a chattel mortgage thereon, the landlord’s lien has preference. Cook v. Yan-dell Realty Co., Tex.Civ.App., NWH, 275 S.W. 850.

And a landlord’s lien is also superi- or to any unrecorded chattel mortgage, even if the mortgage is older than the landlord’s lien. General Motors Acceptance Corp. v. Bettes, Tex.Civ.App., Er. Ref., 57 S.W.2d 263.

As to the priority between a landlord’s lien and a security interest, as is the situation here, Texas Jurisprudence 2d says: “ * * it would seem that the likely future rule as to the priority of a landlord’s lien over a security interest is that if the security interest is perfected at the time the personal property is placed on the leased premises, the security interest should be paramount; on the other hand, if the security interest is perfected with respect to the property after it is on the premises, the landlord’s lien should be superior.” 51 Texas Jur.2d p. 518.

The equipment was placed in appel-lee’s building before appellant perfected its security interest. Appellee thereafter on December 28, 1973, perfected and filed its Owner of Building Lien, which was prior to the time appellant perfected its Security interest on January 28, 1974. Under such situation we think appellee’s lien has priority over appellant’s lien.

Contention 1 is overruled.

Contention 2 asserts the trial court erred in admitting the recording information of the Owner of Buildings Lien affidavit in the Landlord’s Lien Records.

Trial was before the court without a jury on September 5, 1974. The Statement of Owners of Buildings Lien was attached to appellee’s pleadings, and was introduced into evidence. It was referred to during the trial. On September —, 1974, appellee filed motion to introduce additional evidence, the recording information on such instrument. The trial court ordered such information filed as a matter of record in the cause pursuant to Rule 270 Texas Rules of Civil Procedure.

Rule 270 provides “at any time the court may permit additional evidence to be offered where it clearly appears to be necessary to the due administration of justice. * * * ”

The evidence was received before judgment was rendered. Its admission was discretionary with the trial court. Gulf, C. & S. F. Ry. Co. v. Johnson, 83 Tex. 628, 19 S.W. 151; Isenberg v. Isenberg, Tex.Civ. App., NWH, 510 S.W.2d 364. No abuse of discretion on the part of the trial court has been shown.

Contention 2 is overruled.

Affirmed.


author: PER CURIAM.

text:
    Clint A. BARHAM, Appellant, v. Lucille COMBS, Appellee.
    No. 17620.
    Court of Civil Appeals of Texas, Fort Worth.
    May 16, 1975.
    Whitley R. Sessions, Dallas (no brief filed), for appellant.
    Gayle E. Oler, Dallas (no brief filed), for appellee.
   OPINION

PER CURIAM.

This is an appeal from an order overruling defendant’s plea of privilege.

Prior to submission the appellee filed his Motion to Dismiss for Want of Prosecution under Rule 415, Texas Rules of Civil Procedure, due to appellant’s failure to file a brief. No statement of facts has been filed, nor has appellee filed a brief.

The order overruling defendant’s plea of privilege was rendered and signed on November 26, 1974; defendant gave notice of appeal in open court, and it was duly noted in the order. Defendant filed his cash bond and request for transcript on December 13, 1974. On December 16, 1974, the transcript was filed in this Court. It has now been one hundred and fifty-one (151) days since the transcript was filed. No motion for extension of time for filing briefs nor attempted explanation for failure to file briefs has been forthcoming.

Rule 414, T.R.C.P., provides that appellant shall file his brief in the Court of Civil Appeals within thirty days after the filing of the transcript and statement of facts, if any. Rule 415, T.R.C.P., provides for the dismissal of appeals for failure to file briefs for want of prosecution in the absence of any “good cause” shown for failure to do so. Appellant has shown no good cause for failure to file his brief within the prescribed time limits. This failure to comply with the Rules permits the Court to dismiss the appeal. I_ B- v. State, 513 S.W.2d 303 (Corpus Christi, Tex.Civ.App., 1974, no writ hist.); Rodriguez v. Flores, 426 S.W.2d 285 (San Antonio, Tex.Civ.App., 1968, no writ hist.) ; Dixieland Petroleum Corporation v. Brown, 216 S.W.2d 235 (Eastland, Tex. Civ.App., 1948, no writ hist.); Foreman v. Dallas Credit Corporation, 360 S.W.2d 442 (Waco, Tex.Civ.App., 1962, no writ hist.). To the same effect are cases involving pleas of privilege: Mitchell v. Gregg, 394 S.W.2d 665 (Tyler, Tex.Civ.App., 1965, no writ hist.); Schkade v. Independent-Eastern Torpedo Co., 168 S.W.2d 281 (East-land, Tex.Civ.App., 1942, no writ hist.).

Even where no statement of facts or brief are filed, this Court will examine the record for fundamental error and questions of law important to the public in general. Franke v. Franke, 373 S.W.2d 891 (Corpus Christi, Tex.Civ.App., 1963, no writ hist.). We find none in this case.

The appeal is dismissed.


author: KLINGEMAN, Justice.

text:
    Jose F. OLIVARES, Appellant, v. PORTER POULTRY & EGG COMPANY, a partnership, Appellee.
    No. 15408.
    Court of Civil Appeals of Texas, San Antonio.
    May 14, 1975.

      Jose F. Olivares, San Antonio, for appellant.
    William M. Porter, San Antonio, for ap-pellee.
   KLINGEMAN, Justice.

Appellant, Jose F. Olivares, appeals from an adverse judgment rendered against him in favor of Porter Poultry & Egg Company, A Partnership. Trial was to a jury and judgment entered in accordance with the jury verdict awarding appellee the sum of $128.11 as the reasonable market value of certain chickens furnished by appellee, the use and benefit of which were knowingly accepted by appellant; the sum of $525.00 as reasonable attorney’s fees rendered by appellee’s attorney in the trial court; and the sum of $750.00 as attorney’s fees for handling an appeal, if any was perfected. No statement of facts was filed in this Court and no findings of fact or conclusions of law were requested of or filed by the trial court

By his first point of error, appellant complains that the trial court erred in granting a second hearing, after the jury in the first trial was unable to reach a verdict and its discharge was agreed to by appellant with prejudice to appellee, because Rules 289 and 326, Texas Rules of Civil Procedure (1967), were improperly construed by the court in granting a new trial on its own motion, and that the same amount to bias and denial of due process.

We find no merit in such point of error. In the first place, there is nothing in the record to indicate that a so-called first trial was had. In any event, appellant does not complain of the discharge of the jury in such first case and states in his brief that he agreed to the dismissal of such jury. He states in his point of error that he agreed to it with prejudice to appellee, but there is nothing in the record to substantiate this statement.

Appellant’s complaint here appears to be that the record does not show that appellee moved for another trial, but that it was taken up by the court on its own motion and resulted from the activism of the court. In support of such point of error, he cites and relies on Rules 289 and 326, Tex.R.Civ.P. (1967). Rule 289, after setting forth the conditions under which a jury may be discharged, specifically provides : “Where a jury has been discharged without having rendered a verdict, the cause may be again tried at the same or another term.” Rule 289 does not support appellant’s contention. Rule 326 provides: “Not more than two new trials shall be granted either party in the same cause because of insufficiency or weight of the evidence.” There is absolutely nothing in the record to show that there has been more than two trials, in fact, as heretofore noted, there is nothing in the record to indicate that there has been more than one trial. Moreover, appellant has no point of error complaining of the insufficiency or weight of the evidence. There is absolutely nothing in the record to indicate that another trial was granted on the basis of insufficiency or weight of the evidence. It is clear from the wording of Rule 326 that it has no application here and that it does not support appellant’s first point of error. Such point of error is overruled.

By his second point of error, appellant complains that the trial court erred in denying appellant’s motion to strike appel-lee’s first amended original petition, which was filed after the first trial and imperfectly setting out a new cause of action, and that in this connection, it was also error of the court not to sustain appellant’s exceptions.

An examination of the record reveals that the trial was set for July 17, 1974, and that on July 12, 1974, the appellant filed a first amended original answer and cross-action. It further appears from the record that appellant’s exceptions to appel-lee’s first amended original petition were filed on the 17th day of July, 1974, the date of the trial. Appellee objected to the filing of such pleadings on the ground that they were not timely filed in that the trial was set for July 17, 1974. The court, after a hearing, sustained such objection and found that the same were filed within seven days of the trial date of July 17, 1974, and were in contravention of Rule 63, Tex. R.Civ.P. (1967), and the rules of the County Courts of Bexar County, Texas; that no leave to file was obtained by appellant; and that such late filings constituted a surprise to appellee. Such pleadings, including the exceptions, were stricken and held for naught. It does not affirmatively appear from the record that any action was taken by the court on appellant’s motion to strike, and the transcript contains no orders of anything else in this connection. In any event, appellant does not complain of the order striking his amended pleadings.

The record does not establish any abuse of discretion by the trial court and appellant’s second point of error is overruled.

By his third point of error, appellant complains that the trial court erred in refusing to instruct the jury as to the meaning of the term “use and benefit.”

The case was submitted to the jury on four special issues. Issue No. 1 inquired as to whether Jose F. Olivares knowingly accepted the use and benefit of certain chickens furnished by Porter Poultry & Egg Company in March of 1971, to which the jury answered “yes.” Issue No. 2 asks what the reasonable market value of such chickens in Bexar County, Texas, was in March of 1971, to which the jury answered “128.11.” Issue Nos. 3 and 4 pertain to attorney’s fees. The transcript contains no written objections or exceptions to the charge as submitted and does not show that any other special issues were requested to be submitted. The only thing in this connection appears in a supplemental transcript, where the court, after stating that the court had presented to the counsel for plaintiff and defendant the proposed court charge, inquired whether they had any requested issues, definitions or objections to the charge. Counsel for plaintiff stated that he did not. Counsel for defendant, Mr. Olivares, stated: “The charge and issues are acceptable, except as to the definition I requested. That the definition of use and benefit be as follows: By the term ‘use and benefit’ is meant or understood anything, money or in kind, that would unjustly enrich the recipient if he were not to pay for it.” The court then stated that the request and definition was denied by the court.

It is clear from the record that appellant made no objection to any special issues as submitted nor did he submit any special issues. His only request was for a definition of the words “use and benefit” as hereinabove set forth, and his point of error complains only of the court’s failure to submit such definition. Rule 279, Tex.R. Civ.P. (1967), provides in part as follows: “Failure to submit a definition or explanatory instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or explanatory instruction has been requested in writing and tendered by the party complaining of the judgment.”

The failure of a court to submit a definition or explanatory instruction is not grounds for reversal unless a substantially correct definition or instruction has been requested in writing and tendered by the complaining party. State v. Harrington, 407 S.W.2d 467, 479 (Tex.1966); Yellow Cab & Baggage Company v. Green, 154 Tex. 330, 277 S.W.2d 92, 93 (1955); McNutt v. Qualls, 433 S.W.2d 521 (Tex.Civ. App.—Dallas 1968, no writ); Wilson v. City of Port Lavaca, 407 S.W.2d 325 (Tex.Civ.App.—Corpus Christi 1966, writ ref’d n. r. e.) ; Crowell-Gifford Furniture Company v. Cloutman, 276 S.W.2d 539 (Tex. Civ.App.—Beaumont 1955, writ ref’d n. r. e.).

Appellant failed to submit a substantially correct definition of the term “use and benefit” either in writing or otherwise, and we find no reversible error of the court in failing to submit definition of such term.

Appellant’s fourth point of error asserts that the trial court erred in permitting the submission of the issues on attorney’s fees where the same was not pled under the theory of “quantum meruit” and appellee wholly abandoned its pleadings for recovery on a sworn account.

Appellant’s point of error is limited to two things: (1) error of the court in submitting the issue on attorney’s fees because of lack of proper pleadings; (2) appellee abandoned its original suit for recovery on a sworn account. However, appellant also asserts in his brief that (a) attorney’s fees are not recoverable in a suit on a quantum meruit basis; (b) the award of attorney’s fees for handling an appeal is error.

Article 2226, Vernon’s Tex.Rev.Civ. Stat.Ann. (Supp.1974 — 75) provides: “Any person, corporation, partnership, or other legal entity having a valid claim against a person or corporation for services rendered, labor done, material furnished, or suits founded upon a sworn account or accounts, may present the same to such persons or corporation or to any duly authorized agent thereof; and if, at the expiration of 30 days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such persons or corporation, he may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees.” See also 62 Tex.Jur.2d, Work, Labor & Material, Section 24 (1965).

It has been previously pointed out that appellant made no objection to the charge as submitted. In particular, there were no objections to the submission of the special issues on attorney’s fees or as to the form thereof or otherwise, and nowhere in the record before us is it shown that any objection to the court’s charge pertaining to attorney’s fees was ever presented to the trial court for its consideration. The failure of a party to object to special issues contained in the charge before it was presented to a jury constituted a waiver of objections. Rule 272, Tex.R.Civ.P. (Supp.1975); Terry County Airport Board v. Clark, 378 S.W.2d 932 (Tex.Civ.App. — Amarillo 1964, no writ); Leatherwood v. Holland, 375 S.W.2d 517 (Tex.Civ.App. — Fort Worth 1964, writ ref’d n. r. e.). In the absence of a showing that objections were ever presented to the trial court or acted upon by him, such objections are not properly preserved for review. Rule 272, Tex.R.Civ.P. (Supp. 1975); Wolfe v. Speed Fab-Crete Corp., International, 507 S.W.2d 276 (Tex.Civ. App. — Fort Worth 1974, no writ); Wilson v. King, 311 S.W.2d 957 (Tex.Civ.App.— Austin 1958, writ ref’d).

We will consider appellant’s contention that there were no pleadings to support a recovery of attorney’s fees on a quantum meruit basis. Appellee, in his pleading on which he went to trial (First Amended Original Petition), sought recovery both on the basis of a sworn account and, in the alternative, on a quantum meruit basis. In such pleadings, appellee stated that in accordance with Article 2226, Tex. Rev.Civ.Stat.Ann. (Supp.1974-75), they presented their claim to appellant in writing more than thirty days prior to the institution of the suit which was not paid or satisfied and asked, in the event of recovery there, in any manner, that appellee be allowed to recover reasonable attorney’s fees, setting forth what such reasonable attorney’s fees are, including the cost of an appeal. In the prayer to such petition, appellee prayed that it recover attorney’s fees against defendant for the prosecution of the suit against appellant, as the evidence may show. We do not regard appellee’s pleadings as limiting any recovery of attorney’s fees to a suit on a sworn account, and in view of our liberal view on pleading, there are sufficient pleadings to permit recovery of attorney’s fees on a quantum meruit basis.

We consider next appellant’s contention that appellee wholly abandoned its suit for recovery on a sworn account. There is nothing in the transcript to so indicate, and, in the absence of a statement of facts, there is no way of us telling what the evidence was or just what theory the case was tried on in the trial court. This contention is without merit.

With regard to appellant’s contention that attorney’s fees are not recoverable in a quantum meruit suit, appellant cites only one case, towit, Ferrous Products Company, Inc. v. Gulf States Trading Company, 323 S.W.2d 292 (Tex.Civ.App.—Houston 1959) affirmed, 160 Tex. 399, 332 S.W.2d 310 (1960). This case does not support appellant’s contention in this regard. In Ferrous, a recovery of attorney’s fees was upheld in a suit in which a judgment was allowed on a theory of implied contract, the appellant having received and disposed of steel beams. Appellant contended specifically that attorney’s fees were not recoverable under either Article 2226, Tex.Rev.Civ.Stat.Ann. (Supp.1974— 75), or Rule 185, Tex.R.Civ.P. (Supp. 1975). The court, in rejecting such contention, said: “Article 2226 provides in part that attorney’s fees are recoverable where there is a valid claim for material furnished. There is no limitation on the right of recovery because of the manner in which the claim arose. It is sufficient to encompass a claim for materials furnished, as here, under a quasi-contract or one implied in law.” With regard to Rule 185, the court stated: “The only requirement seems to be that the claim be for goods, wares and merchandise. There is no limitation as to how the claim must arise. We think the statute is broad enough to cover a situation where goods, wares and merchandise are received by a person, whether it be under an express contract, one implied in fact, or, as here, one implied in law.”

It is no objection that plaintiff sought to recover both on an express contract and upon a quantum meruit. He might allege both and recover as the evidence might show. Blalack v. Johnson, 293 S.W.2d 811 (Tex.Civ.App.—Texarkana 1956, no writ); Johnson Aircrafts, Inc. v. Eichholtz, 194 S.W.2d 815, 816 (Tex.Civ.App.—Fort Worth 1946, writ ref’d n. r. e.); Fant v. Andrews, 46 S.W. 909, 910 (Tex.Civ.App.1898).

The recovery of attorney’s fees in suits founded on quantum meruit basis has been allowed in a number of cases. Ferrous Products Company, Inc. v. Gulf States Trading Company, supra-, Blalack v. Johnson, supra-, Southwest Fabricating & W. Co. v. Gray Electronics, 248 S.W. 2d 961 (Tex.Civ.App. — Galveston 1952, no writ); 62 Tex. Jur.2d, Work, Labor & Materials, Section 24 (1965).

Appellant makes no complaint as to the reasonableness of attorney’s fees, and, in the absence of a statement of facts, we must presume there was sufficient evidence to support the jury’s award of attorney’s fees.

We also consider appellant’s contention that attorney’s fees for the costs of appeal are not recoverable. A court, in its discretion, may allow a fee to an attorney for an appeal, but is not required to do so. Bernard v. Bernard, 491 S.W.2d 222 (Tex.Civ.App. — Houston [1st Dist.] 1973, no writ). A judgment for attorney's fees, not only for legal services in trial court but also covering various steps in possible appeal, was not void, although in part conditioned on happening of contingencies which could not occur until after judgment was rendered. Grimes v. Robitaille, 288 S.W.2d 211 (Tex.Civ.App. — Galveston 1956, writ ref’d n. r. e.).

Under the record, appellant’s fourth point of error has no merit and must be overruled.

Appellant also asks this court to grant a remittitur for such amount as to the court may appear fair and reasonable. Appellant has no points of error complaining of the excessiveness of the award nor does he complain that any of the jury’s answers find no support in the evidence, or that there is insufficient evidence, or that such answers are contrary to the great weight and preponderance of the evidence. Appellant did not ask any remittitur in the trial court. Moreover, appellant saw fit to bring this appeal without a statement of facts, and there is no way from the record before us to determine whether a remitti-tur is proper or the amount of such remit-titur, if any. In the absence of a statement of facts, we must presume that all of the jury’s answers were sufficiently supported by the evidence.

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

      . A definition is essential only when the term is a legal expression having a meaning unknown to laymen or is used in a charge in a peculiar legal sense or under circumstances which might confuse or mislead unless explained. 3 McDonald, Texas Civil Practice, Section 12.14.3(c), Definitions (1970) ; Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93 (Tex.Civ.App. — Amarillo 1971, writ ref’d n. r. e.).

      . Two special issues on attorney’s fees were submitted. In answer to Special Issue No. 3, the jury found that a reasonable attorney’s fee for the services rendered by attorney, William M. Porter, on behalf of the plaintiff in the lawsuit to the present date was $525.-00. In answer to Special Issue No. 4, the jury found that a reasonable attorney’s fee for services to be rendered by attorney Porter on behalf of plaintiff in the lawsuit in connection with an appeal, if any, was $750.00.

      . Appellant’s only exception to such pleadings was filed on July 17, 1974, the date of the trial, without leave of the court first had or obtained, and where stricken by the court as hereinbefore discussed for not being timely filed and on the grounds that they constituted a surprise.

      . Quantum meruit is founded upon the rule that it is inequitable for a party to refuse to pay for the benefits he received, or for work performed for him, with his knowledge and consent, by someone who is authorized to expect remuneration therefor, and is based upon a promise implied by law to pay for beneficial services rendered and knowingly accepted. Colbert v. Dallas Joint Stock Land Bank of Dallas, 129 Tex. 235, 102 S.W.2d 1031, 1034 (1937) ; Blalack v. Johnson, supra; Parks v. Kelley, 147 S.W.2d 821, 822 (Tex.Civ.App.—Amarillo 1941, no writ).

      . In Scanlan v. Gulf Bitulithie Company, 27 S.W.2d ' 877, 880 (Tex.Civ.App. — Austin 1930), rev’d on other grounds, 44 S.W.2d 967 (Tex.Com.App.1932), the jury found that $1,-250.000 was a reasonable attorneys’ fee in the trial court and that $400.00 would be a reasonable additional fee in ease of appeal. The court, in approving such attorneys’ fee said:
      “The fee allowed is not attacked as being unreasonable. Nor do we sustain the contention that the judgment as to the attorneys’ fee was void because conditioned upon the happening of a contingency which could not occur until after the judgment was entered. Appellee’s right to such fee necessarily included reasonable fee for such services up to final judgment. If such services at added cost were required on appeal, a reasonable fee therefor would be included also. The judgment was for a definite sum, with a credit of a definite sum upon a contingency, dependent entirely upon the election of the appellants. When they appealed, the contingency was removed, and there remained no facts for those executing such judgment to ascertain and determine which were not stated in the judgment.”


author: BREWSTER, Justice.

text:
    Marshall A. HINES et al., Appellants, v. Mancle T. POINTER et al., Appellees.
    No. 17617.
    Court of Civil Appeals of Texas, Fort Worth.
    May 9, 1975.
    Rehearing Denied June 13, 1975.

      Dauphin Whitehead, Arlington, for appellants.
    Brown & Tibbals, and Michael Tibbals, Dallas, for appellees.
   OPINION

BREWSTER, Justice.

This is a trespass to try title case. The property involved was 110 acres of land near Fort Worth consisting of an 80 acre tract and a 30 acre tract that adjoined. The plaintiffs were heirs of Andrew Jackson Pointer, who died in 1910, and the defendants were Marshall Hines, Evie Pointer, A. J. Pointer, and W. L. Pointer. The Pointer defendants were also heirs of Andrew Jackson Pointer.

Following a jury trial the court rendered judgment awarding a ⅜⅛ interest in both tracts to the defendant, Marshall Hines, and awarding an undivided %ths interest in both tracts to the heirs of Andrew Jackson Pointer, as tenants in common, but excluding the defendants, Evie Pointer, A. J. Pointer and W. L. Pointer from any recovery at all. This is an appeal by all of the defendants from that decree.

We affirm.

In defendants’ 5th and 6th points of error they contend that the trial court erred in holding that, as a matter of law, under the undisputed evidence in this case, the heirs of Andrew Jackson Pointer (plaintiffs) were tenants in common as to both tracts of land, with the defendants, three of whom were also heirs of Andrew Jackson Pointer.

We overrule those two points of error.

There are two A. J. Pointers involved in the case. We will refer herein to the older one, who is now deceased, as Andrew Jackson Pointer, and to the younger one, a defendant here, as A. J. Pointer.

Plaintiffs alleged that a deed from J. J. Williams and wife conveying the 80 acre tract to Andrew Jackson Pointer, on November 12, 1903, is the common source of title of both plaintiffs and defendants to that tract.

Plaintiffs had alleged that Andrew Jackson Pointer and wife, M. J. Pointer, had acquired limitation title to both tracts here involved under the following statutes: Articles 5509, 5510, 5519 and 5519a, Vernon’s Ann.Civ.St., and that the limitation title they had acquired was the common source of title of both plaintiffs and defendants to the 30 acre tract.

They alleged in the alternative that the limitation title that Andrew Jackson Pointer and his wife, M. J. Pointer, had acquired to the 80 acre tract was the common source of title of both plaintiffs and defendants to the 80 acre tract.

The undisputed evidence in the case showed the execution and delivery of that deed from J. J. Williams to Andrew Jackson Pointer and that it was filed for record in the deed records of Tarrant County on November 12, 1903. The undisputed evidence showed that the record title to the 30 acres involved stood in the name of E. M. Williams by virtue of a conveyance made in 1896 by G. H. Smithee and wife to Williams. The record title to the 30 acre tract has never stood in the name of Andrew Jackson Pointer. Andrew Jackson Pointer died in November, 1910, and his will was probated in 1911 and the inventory of his estate listed a 100 acre farm out of the Susan Lynn Survey as an asset. The land involved here is located in that survey. Andrew Jackson Pointer devised his property to his wife, M. J. Pointer, for life and at her death what remained was to be divided equally among his 9 children. The widow of Andrew Jackson Pointer died in 1923.

It is undisputed that Andrew Jackson Pointer is the ancestor of all of the plaintiffs and that he went into possession of the entire 110 acres involved in 1903 openly claiming it as his own, farmed it, and stayed there until he died in 1910. From 1910 to 1919 the Andrew Jackson Pointer family continued to have exclusive adverse possession of that 110 acres, claimed title to it all, had it entirely enclosed in a fence, ran cattle and raised fruit on it during all of that time. The undisputed evidence showed that Andrew Jackson Pointer and his family held open, peaceable, adverse possession of the entire 110 acres from 1903 until 1919, farming and grazing it. In 1919 the family moved to West Texas, at that time leasing this 110 acre farm to a Mr. Williams for $75.00 a year until 1935. Out of the rent each year Mr. Williams, the tenant, paid the taxes and gave the balance of the rent to one of the Pointer heirs. This tenant, Williams, held open, continuous, adverse possession of the entire 110 acre farm for the Andrew Jackson Pointer family from 1919 to 1935, recognizing the Pointer family as owners of the land and paying rent to them.

The plaintiffs are in privity of estate with Andrew Jackson Pointer, because they were his descendants, and because of the will that he left. The widow of Andrew Jackson Pointer, by his will, was given a life estate in the farm. The remain-dermen are in privity of estate with the decedent and may tack both the adverse possession of the decedent and of the life tenant so as to mature a limitation title. (150 A.L.R. 557, and cases there cited.)

The undisputed evidence shows that Andrew Jackson Pointer, was also the ancestor of the defendants, A. J. Pointer, W. L. Pointer, and Evie Pointer. Luther (Luke) Pointer was the son of Andrew Jackson Pointer and Mollie J. Pointer. He was also the husband of Evie Pointer and the father of A. J. Pointer and W. L. Pointer.

We hold that the trial court was correct in holding as a matter of law that before 1940 the heirs of Andrew Jackson Pointer and M. J. Pointer had acquired title to and owned both the 80 acre tract and the 30 acre tract as tenants in common. See 15 Tex.Jur.2d 160, Cotenancy.

The court in Corn v. First Texas Joint Stock Land Bank, 131 S.W.2d 752 (Fort Worth, Tex.Civ.App., 1939, writ ref.), said at p. 757: “. . . they were joint tenants in the entire 691 acres. Such relation is characterized by the joint ownership by them of an estate in the land, regardless of the extent, nature or tenure of the respective interests.”

The heirs of Andrew Jackson Pointer and his wife, Mollie Pointer, under the undisputed evidence in the case, had acquired title to the 30 acre tract under the 10 year and 25 year limitation statutes by the year 1940. They acquired title to the 80 acre tract, as a matter of law, through the 1903 deed from J. J. Williams to Andrew Jackson Pointer, and by virtue of their being heirs of that grantee. Had that deed been defective in some way, the undisputed evidence is such that they have also acquired, by 1940, the title to the 80 acre tract by adverse possession under the 5, 10. and 25 year limitation statutes.

As hereinabove stated a deed had been introduced by plaintiffs dated November 12, 1903, executed by J. J. Williams and wife, conveying the 80 acre tract to Andrew Jackson Pointer. Plaintiffs contend that this deed was the common source of title of both plaintiffs and defendants to the 80 acre tract. The defendants then introduced a warranty deed dated February 28, 1902, executed by Andrew Jackson Pointer and wife, M. J. Pointer, conveying this 80 acre tract to one Sam Williams.

The defendants here contend that the doctrine of after-acquired title applied to that fact situation, the result being that when Andrew Jackson Pointer, and wife Mollie, again acquired title in 1903, that it immediately vested back into the Sam Williams who had been named as the grantee in that 1902 deed that they had executed. Defendants contend that because of that after-acquired title doctrine, the 1903 deed into Andrew Jackson Pointer of the 80 acre tract cannot be a common source of title of the parties to the suit to that tract.

We overrule that contention. The doctrine of after-acquired title does not apply in this situation.

No one in this case is claiming title to any of the land involved under or through Andrew Jackson Pointer’s grantee in the 1902 deed (Sam Williams).

The rights or benefits afforded by the doctrine of after-acquired title would operate only in favor of the original grantee in the 1902 deed, Sam Williams, or in favor of any person holding or claiming title under him, no matter how remote the claim is, and the doctrine would bind the grantor in the 1902 deed and his heirs. Patton on Land Titles, Vol. 1, 2nd Edition, Sec. 215. The doctrine is based on estop-pel.

Because none of the defendants in this case claim under Sam Williams, the grantee in the first or 1902 deed, the doctrine of after-acquired title has no application. It only operates in favor of the grantee in that earlier deed or in favor of one claiming under that grantee. Newton v. Easterwood, 154 S.W. 646 (Texarkana Tex.Civ.App., 1913, writ ref.), and Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878 (1940).

We hold that this deed from J. J. Williams and wife, conveying the 80 acre tract to Andrew Jackson Pointer, was a common source of title of plaintiffs and defendants to that 80 acre tract.

The defendants, Evie Pointer, W. L. Pointer and A. J. Pointer were, as a matter of law, cotenants with the plaintiffs of the 110 acres involved here.

The defendant, Marshall Hines, is claiming the 80 acre tract under a 1967 deed from Evie Pointer, W. L. Pointer, and A. J. Pointer. He is claiming title to the 30 acre tract by virtue of a 1972 deed from the defendants, Evie Pointer, W. L. Pointer, and A. J. Pointer. By those two conveyances Hines acquired the interest that those three grantors had in the two tracts involved. If they only owned, on the dates of the two deeds, the interest in the two tracts that the three grantors in those deeds had by inheritance from Andrew Jackson and Mollie J. Pointer, then Mr. Hines also became a tenant in common with the heirs of Andrew Jackson and Mollie Pointer.

In their point of error No. 9, defendants contend that the trial court erred in holding that plaintiffs held a regular chain of title from the sovereign to the time of trial. We overrule that point because the record in this case indicates that the trial court made no such holding.

Defendants’ point of error No. 15 is that the trial court erred in holding, as a matter of law, that the appellees held adverse possession of the 30 acre tract. We overrule that point. We are convinced, as we have hereinabove indicated, that the undisputed evidence in the case does show that the heirs of Andrew Jackson Pointer and Mollie J. Pointer acquired title to the entire 110 acres involved here by adverse possession prior to 1940.

In addition to that, the trial court even submitted the question to the jury in special issue No. 1, and the jury answered the question adversely to the defendants. Issue No. 1 inquired: “Did the heirs of Andrew Jackson Pointer, including the Plaintiffs herein, and the Defendants, Evie Pointer, A. J. Pointer, and W. L. Pointer, and those under whom they claim, hold peaceable and adverse possession of the land here involved, cultivating, using or enjoying the same, for any period of ten (10) consecutive years before April 29th, 1967?” The jury answered the issue, “Yes.” (Emphasis supplied.)

The submission of the adverse possession question to the jury removed all questions about the matter.

Defendants’ 10th point of error is that the trial court erred in holding, as a matter of law, that plaintiffs had prior possession of the land. Their 11th point of error is that the court erred in holding, as a matter of law, that appellees had not abandoned the land.

We overrule both of those points of error.

In a trespass to try title suit, a plaintiff can recover by proving title in one of four ways, to-wit:

1. By proving a regular chain of conveyances from the sovereign;

2. By proving a superior title out of a common source;

3. By proving title by limitations; or

4. By proving title by prior possession, and that the possession had not been abandoned. See Land v. Turner, 377 S.W.2d 181 (Tex.Sup., 1964).

The defendants’ 10th and 11th' points of error only relate to the question of whether plaintiffs had a right to the judgment they got by proving title under No. 4 above (prior possession without abandonment). A discussion of these two points is not material to our decision because we are holding that, under the evidence offered and the jury verdict in the case, the plaintiffs were entitled to their judgment on the theory that they have proved a superior title out of a common source.

In defendants’ 12th point of error they urge that the trial court erred in holding, as a matter of law, that the 5 year statute of limitations did not begin to run in favor of defendant, Hines, at the time of the filing of the deed from Evie, W. L., and A. J. Pointer to defendant, Hines.

They urge in the 13th point of error that the trial court erred in holding that the deed from the three Pointer defendants to the defendant, Hines, conveying the 80 acres to Hines, was not a repudiation of the cotenancy between the three Pointer defendants and the other Pointer heirs.

We overrule both of those points.

As we interpret the record the trial court did not hold as a matter of law that the 5 year statute did not begin to run on the 80 acres when defendant, Marshall, filed his deed. If he had so held, he would not have submitted issue No. 2 to the jury, which read: “Has the Defendant, Marshall A. Hines, held peaceable and adverse possession of the eighty (80) acre tract, cultivating, using or enjoying the same, or any part thereof, and paying taxes thereon, and claiming under deed or deeds duly registered for any period of five (5) consecutive years before July 11th, 1972?” The jury answered the issue, “No.”

The undisputed evidence showed that the three Pointer defendants came to defendant, Hines, who was an attorney, in 1967, seeking legal advice and services reference to clearing title to the 110 acre farm. These three Pointers ended up deeding to Mr. Hines the 80 acre tract as a fee for his services in clearing the title to the 30 acre tract for them. Mr. Hines filed his deed in the Tarrant County deed records on May 9, 1967. This lawsuit was filed on July 11, 1972.

At the time the three Pointer defendants executed the 1967 deed to Hines purporting to convey to him the 80 acre tract, they were cotenants of that tract with the plaintiffs as a result of all being heirs of Andrew Jackson Pointer and his wife.

A cotenant can only convey his own interest in the common land, and cannot convey any part of the common property that is not his own. 15 Tex.Jur.2d 171, Cotenancy, Sec. 13, and authorities there cited. The effect of a conveyance of the whole tract is to give title to the grantee of only the undivided interest owned by that cotenant grantor. 15 Tex. Jur.2d 197, Cotenancy, Sec. 32. His rights are identical with that of the grantor.

In this case under the undisputed evidence in the case the plaintiffs (heirs of Andrew Jackson Pointer) and the three Pointer defendants (also heirs of the same man) were cotenants as to the entire 110 acre farm on the date in 1967 when those three defendants executed the deed purporting to convey all of the 80 acre tract to Hines. Therefore, the only part of the 80 acre tract that passed to Hines by this deed was the undivided interest that was owned in that tract at the time by these three grantors in the deed. By this transaction Hines became a cotenant of the 80 acres with the plaintiffs.

Mr. Hines’ position advanced in this case is that he acquired title to the 80 acre tract under the 5 year limitation statute (Art. 5509, V.A.C.S.) during the interval between the time the deed to him was recorded on May 9, 1967, and July 11, 1972, the date the suit was filed. To be successful on appeal, Mr. Hines thus had to show that he acquired limitation title under the 5 year statute against all of his cotenants in that particular interval of 5 years, 2 months and 2 days. He would have to show that limitations began running in his favor before July 11, 1967, in order to get his 5 years of adverse possession.

The possession of the 80 acre tract by the three Pointer defendants (who were tenants in common of the land with the plaintiffs) before their execution of the 1967 deed to Hines was not, under the undisputed facts of this case, adverse to the other tenants in common, the plaintiffs. King v. Hill, 141 Tex. 294, 172 S.W.2d 298 (1943).

At the time this deed to Hines was executed there was then in effect a one year written lease on the land held by some people named Grimsley. The lease covered the period from January 1, 1967, to December 31, 1967. This tenant lived on an adjoining farm and was in possession of the farm involved here under that one year lease and was using it to graze cattle. Hines expressly recognized the validity of this lease from his grantors to the Grims-leys. After Hines got his deed the tenant stayed on in possession. The occupancy of the farm was the same in 1967 after the Hines deed was executed as it was before the deed was executed. Hines testified that A. J. Pointer took him out and introduced him to the tenant and told her to thereafter pay the rent to him as the new owner. He said this occurred not long after the deed was executed on April 29, 1967. The tenant testified that her lease expired on December 31, 1967, and that A. J. Pointer brought Mr. Hines out to her house and introduced him to her about 3 or 4 months before the lease ended. At that time A. J. Pointer told the tenant that Hines had become owner of the land and to pay future rentals to him. If the tenant’s testimony was correct then her introduction to Hines did not occur prior to July 11, 1967, and if the jury believed that testimony he could not have had 5 years adverse possession before the suit was filed.

The general rule is that a conveyance by one cotenant to a stranger to the title, by an instrument purporting to pass the entire title in severalty and not merely the grantor’s interest, when followed by entry of such stranger, claiming under such deed, into actual and exclusive possession, amounts to a disseisin of the other cotenants, and that such possession if continued for the statutory period will ripen into title. Jones v. Siler, 129 Tex. 18, 100 S.W.2d 352 (Tex.Com.App., 1937). That Court went on to hold that the recording of the deed from the cotenant conveying the whole title of the land to the stranger plus the actual taking of possession of the land by the stranger gave the other coten-ants constructive notice of the hostile character of the claim by the person in possession. The Court further held that the recording of the deed alone, without the taking of possession by the grantee in the deed, would not have constituted the required notice, because of the rule that one is not charged with notice by the registration of an instrument that is not in his chain of title.

The situation in this case is a little different from the case just referred to. Here the same persons were in possession after the deed to Hines was executed that were in possession before the deed was executed. The person in possession of the land remained the same during all of 1967.

The evidence shows that Mr. Hines met the requirement laid down in the Jones v. Siler case, supra, of receiving and recording a deed purporting to convey the whole tract to him more than five years before this suit was filed. The crucial date on this is July 11, 1967 (5 years before filing of the suit). The question is whether Mr. Hines met the third necessary requirement, i. e., made entry upon and took possession of the land.

The question to be decided at this point is: can a stranger to title rely on the continued possession, after the stranger records his deed, of a cotenant’s (his grant- or’s) lessee in order to effect an ouster of the other cotenants?

We hold that the answer to the question is that he cannot rely on that alone and our authority for this holding is King v. Hill, 141 Tex. 294, 172 S.W.2d 298 (1943). In that case King and Denby were tenants in common. Denby lived on the land, paid taxes on it and farmed it. Denby deeded all of the land to Mobley and recorded the deed, but Denby and his family remained in possession. King, the cotenant, was given no actual notice of the conveyance. Nearly 15 years later Denby gave up possession of the land, and King became aware of Mobley’s claim to title and sued Mobley in trespass to try title. Mobley claimed title under the 5 year limitation statute, claiming that there was an ouster and adverse possession by way of actual notice and possession through Denby, who had become Mobley’s tenant. The court rejected that theory because there was no evidence that the cotenant, King, was given any notice that the possession by Denby, after he had executed the deed, was under a different claim of right from that on which it had rested before. The effect of the holding is that the landlord and the tenant must in some way give notice to the other cotenants that he is in possession under a different claim of right.

This case before us is analogous to those in which a cotenant stays in possession after deeding the whole property to a stranger, or the cotenant in possession claims under a deed that purports to convey the fee title to him, or a tenant seeks to assert limitation title against his landlord. All those cases have held that the stranger to the title must give the other cotenants actual notice of the claim or do acts which constitute actual notice to them. Johnson v. Dickey, 231 S.W.2d 952 (Austin, Tex.Civ. App., 1950, ref., n. r. e.) ; Golson v. Fielder, 2 Tex.Civ.App. 400, 21 S.W. 173 (1893, no writ hist.); Brooks v. Shaw, 159 S.W. 2d 206 (Galveston, Tex.Civ.App., 1942, ref., w. m.); and Alexander Co. v. First Nat. Bank of La Grange, 123 S.W.2d 908 (Austin, Tex.Civ.App., 1939, no writ hist.),

Where a new lessee or owner is occupying the land, all the cotenants need to do is look and see that a stranger is in possession. The requirement of a visible appropriation would thus be met. If a cotenant looks and one is in possession of the land that has always been in possession with his consent, he is not thus put on notice of an adverse claim by or through the tenant.

We hold that the undisputed evidence in this case shows that Mr. Hines did not give to his cotenants, the plaintiffs herein, more than 5 years before this suit was filed, the actual notice that the law requires to start limitations to running. The possession of the tenant did not inure to his benefit until the plaintiffs, his fellow cotenants, were given notice that the tenant was holding the land adversely to them. The evidence showed that, although Mr. Hines had conversed with some of his cotenants after he had gotten his deed, none of them were ever told until shortly before this suit was filed that he was claiming title to all of the land adversely to them.

In all events, even if we are wrong in our conclusions expressed in the last paragraph, the question as to whether or not Mr. Hines acquired title by adverse possession under the 5 year statute was at best for Mr. Hines only a fact issue. When the tenant testified that she did not ever meet Mr. Hines until about 3 or 4 months before the 1967 rent was due on January 1, 1968, a fact issue was thus raised as to whether the tenant met Mr. Hines, recognized him as owner of the land, and began holding adverse possession of the land for him as his tenant prior to July 11, 1967. Those facts must have existed if Mr. Hines was to raise the issue as to whether he had title under the 5 year limitation statute. The jury answered special issue No. 2 against Mr. Hines, thus resolving the question of whether he acquired title under the 5 year limitation statute against him.

In their 7th point of error defendants contend that there is insufficient evidence to support the jury’s answer to issue No. 2 and in their 8th point of error they urge that the jury’s answer to issue No. 2 is against the great weight and preponderance of the evidence.

We overrule both of those points.

Issue No. 2 inquired: “Has the Defendant, Marshall A. Hines, held peaceable and adverse possession of the eighty (80) acre tract, cultivating, using or enjoying the same, or any part thereof, and paying taxes thereon, and claiming under deed or deeds duly registered for any period of five (5) consecutive years before July 11th, 1972?” The jury answered the question, “No.”

We hold that the evidence was sufficient to support that jury answer and that the finding was not against the great weight and preponderance of the evidence.

In their 14th point of error defendants contend that the trial court erred in holding that plaintiffs held a superior title from a common source.

We overrule the point.

We have already shown that down to 1940 the plaintiffs and the three Pointer defendants and their predecessors were tenants in common of the entire 110 acre farm.

In about 1940 Luther (Luke) Pointer found out that some taxes were owed against the 110 acre farm in question and he heard that the farm would be sold for taxes. He was told that if he paid these past due taxes and thereafter kept the taxes paid up he would become the owner of the. farm under a doctrine they called tax-steading property. He at that time paid $57.53 in back taxes on the farm and then rented it out continually each year until he died in 1958. This Luther (Luke) Pointer was a son of Andrew Jackson Pointer, the husband of the defendant, Evie Pointer, and he was the father of defendants, A. J. and W. L. Pointer. During his lifetime Luther Pointer leased the farm out starting in about 1940, collected the rentals of $100 a year and paid the taxes as they fell due until he died in 1958. These taxes were less than the annual rent he collected. After he died, his son, A. J. Pointer, a defendant here, began handling the leasing of the farm and paying the taxes. Luther Pointer and, after he died, the members of his family owned interests in this farm as joint tenants with the other heirs of Andrew Jackson and Mollie J. Pointer. This relationship continued until they deeded their interests in the farm to Hines by their 1967 and 1972 deeds.

The undisputed evidence shows that at no time between 1940 and the date of their two deeds to Hines, did Luther Pointer and his wife and children give either actual or constructive notice to their other cotenants that they were making a claim to the land that was hostile to that of the other contenants. Before a cotenant can hold adversely to his cotenants it is necessary that such other cotenants receive notice of his hostile claim. 15 Tex.Jur.2d 189, Cotenancy, Sec. 26.

For the reasons stated the three Pointer defendants did not ever acquire any interest in this land by adverse possession as against their cotenants. Of course, they did not get title to the land by paying the past due taxes as was done in this case. The rentals they collected more than paid for the taxes on the land that they paid later.

The trial court correctly held that plaintiffs established a superior title from a common source to the ⅜ interest in the 110 acre farm that was awarded to them by the judgment appealed from.

In defendants’ points of error Nos. 1 through 4, inclusive, they contend that the trial court, for the various reasons in those four points set out, erred in sub-, mitting special issue No. 1 to the jury.

We overrule those 4 points of error because the alleged errors they complained of were not properly preserved for appellate review.

Rule 272, Rules of Civil Procedure, prescribes the procedure that must be followed in order to preserve for appellate review the court’s ruling on an objection made to a court’s charge. It provides that objections to a court’s charge that are not made and presented and preserved as prescribed in that rule are waived.

Rule 272 in substance provides the following: the objections must be presented to the court in writing before the charge is read to the jury. When the written objections have been so made and presented, if the court overrules them, he shall endorse his ruling on them and sign them officially. When so endorsed and signed the instrument will constitute a sufficient bill of exceptions to the ruling. The requirement that the objections to the charge shall be in writing will be sufficiently complied with if the objections are dictated to the court reporter in the presence of and with the consent of the court and opposing counsel before the charge is read to the jury and are later transcribed and the court’s ruling and official signature endorsed thereon and filed with the clerk in time to be included in the transcript.

In this case the defense counsel dictated his objections here complained of to the court reporter who later transcribed them and included them in the statement of facts. Counsel for the parties attached to the statement of facts an agreement that it was a full transcript of the evidence given during the trial and the court reporter affixed his certificate to the statement of facts. The trial judge did not sign the statement of facts.

The record does not show that these objections, after being reduced to writing, were presented to the trial judge so that he could see them in writing and endorse his ruling thereon, and sign them officially. They were not filed with the district clerk and are not included in the transcript. Because these requirements prescribed by Rule 272 were not complied with, defendants did not preserve the matters complained of in their first 4 points for appellate review. Their objections to the charge were waived.

Cases that support our ruling on defendants’ first 4 points of error are: Kettle v. Smircich, 415 S.W.2d 935 (Corpus Christi, Tex.Civ.App., 1967, no writ hist.) ; State v. Turboff, 431 S.W.2d 953 (Houston, Tex.Civ.App., 1st Dist., 1968, no writ hist.); Big Three Welding Equipment Company v. Roberts, 399 S.W.2d 912 (Corpus Christi, Tex.Civ.App., 1966, ref., n. r. e.); and Maryland Casualty Co. v. Golden Jersey Creamery, 389 S.W.2d 701 (Corpus Christi, Tex.Civ.App., 1965, ref., n. r. e.).

The holding we have made on this point, under the facts of this case, is not changed by the provisions of Sec. (l) of Rule 372, T.R.C.P., as amended in 1967. See on this State v. Turboff, supra.

In each of their points of error Nos. 16, 17, 18, 19 and 20, the defendants contend that the trial court erred in refusing to submit their specially requested issues that are therein set out.

We overrule each of those points because the defendants did not properly preserve for appellate review any of the matters in those points complained of.

The record shows that immediately after the defense counsel got through dictating to the court reporter his objections to the court’s charge, he then dictated to the reporter defendants’ requested special issues. Sometime later (the record does not show when) these requested issues were transcribed by the reporter and placed in the statement of facts.

As far as the record shows these requested issues have never been presented in writing to the trial court for his consideration, the trial judge did not endorse his ruling on any such written requests, and he did not sign any written requested issues officially. They have never been filed in the clerk’s office.

Rule 279, T.R.C.P., provides: “. . . Failure to submit an issue shall not be deemed a ground for reversal unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment . . . .”

Rules 273 and 276 also provide in substance that a requested special issue must be in writing and in that form timely presented to the trial court for him to endorse his ruling and his official signature thereon.

Because the requested issues involved have never been requested in writing, and because the requested issues have never been tendered in written form to the trial court by the defendants for his consideration, the court’s failure to submit such issues in the charge is not a ground for reversal of the case under the express provisions of Rule 279.

Because defendants did not make a proper request for the submission of the issues there is no basis for appellate review. T J Service Co. v. United States Fidelity & Guar. Co., 472 S.W.2d 168 (Corpus Christi, Tex.Civ.App., 1971, ref., n. r. e.; American Pozzolan Corp. v. Desert Trucking Co., 450 S.W.2d 433 (San Antonio, Tex.Civ. App., 1970, ref., n. r. e.); Benritto v. Fransen, 274 S.W.2d 758 (Galveston, Tex. Civ.App., 1955, no writ hist.); and Cudmore v. Richardson-Merrell, Inc., 398 S. W.2d 640 (Dallas, Tex.Civ.App., 1965, ref., n. r. e.).

The judgment is affirmed.