author: STEPHENSON, Justice. KEITH, Justice

text:
    Michael FOLLAK, Appellant, v. Carol Follak BROWN, Appellee.
    No. 7745.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 13, 1975.
    Rehearing Denied Dec. 4, 1975.

      George Sladczyk, Jr., Port Arthur, for appellant.
    Frank A. Adams, Beaumont, for appellee.
   STEPHENSON, Justice.

This is an appeal from an order granting a writ of habeas corpus under Section 14.10 of the Tex.Family Code Ann. (1975). The mother, as petitioner, filed this petition in the Domestic Relations Court in Jefferson County to secure possession of a minor son from the father, the respondent below. The sole question involved is the validity of a judgment from the Family Court of Charleston County, South Carolina.

There is little dispute about the facts of this case. A divorce was granted to these parties by that court October 24, 1972, and the respondent was given custody of the child. In June 1973, petitioner asked that court for a change of custody, which was granted September 13,1973. It is the order changing custody which is the center of controversy in the habeas corpus proceeding. At the time the petition to change custody was filed, respondent and the child were residing in Beaumont. Respondent received notice of a hearing in South Carolina by registered mail in Beaumont. Respondent and the child were living in New Orleans, Louisiana, at the time the order changing custody was entered. Respondent did not appear or answer that petition.

Respondent’s primary contention here is that the South Carolina court did not have in personam jurisdiction over him, and the Beaumont Court erred in giving the South Carolina judgment full faith and credit.

Petitioner, respondent, and the minor child were all before the South Carolina Court at the time the original divorce was granted in 1972. That decree contains this provision:

“ORDERED, ADJUDGED AND DECREED that this Court shall and does retain jurisdiction of the above entitled matter and the minor child, Michael Troy Follak, for further proceedings, if such become necessary.”

In the order of that court dated September 13, 1973, changing custody to petitioner the recital is made that the South Carolina court had retained jurisdiction of this matter and the minor child for further proceedings, if such became necessary.

Section 11.05(a) of the Tex.Family Code Ann. (1975) reads as follows:

“Except as provided in Subsections (b) and (c) of this section, when a court acquires jurisdiction of a suit affecting the parent-child relationship, that court retains continuing jurisdiction of all matters provided for under this subtitle in connection with the child, and no other court has jurisdiction of a suit affecting the parent-child relationship with regard to that child except on transfer as provided in Section 11.06 of this code.”

Inasmuch as the South Carolina court exercised continuing jurisdiction over this matter, together with the accepted presumption that the law of another state is the same as that of Texas in the absence of pleading and proof of such law, we assume that the law of the state of South Carolina provides for continuing jurisdiction as set forth-in Section 11.05(a) above. Proof was made in the court in Beaumont that the South Carolina law provided for the type of service made upon respondent, that is by registered mail.

The only serious question left to determine is whether Section 11.05(a) is extraterritorial in its scope. As set out above, that section includes the provision that “no other court has jurisdiction of a suit affecting the parent-child relationship.”

There are two Texas cases very similar to the one before this court. In Dowden v. Fischer, 338 S.W.2d 534 (Tex.Civ.App.—Waco 1960, no writ), a divorce was granted in Nevada and custody of the children given to the father. No question was presented as to the validity of that judgment. Later the mother filed in the same cause in Nevada and asked for a change of custody. At the time the father and children resided in Texas, and he was given notice of the hearing by mail. The father did not answer or appear, and the custody of the children was awarded to the mother. The father then filed suit in McLennan County, Texas, where he and the children were residing, asserting that the order changing custody was void for want of proper service of notice. The trial court ruled in favor of the father, but the Waco Court of Civil Appeals reversed the trial court judgment and remanded the case and held at page 537 that even though the father and children were domiciled in Texas at the time the custody was changed, that personal service upon him was not required to give the Nevada court jurisdiction. It was held that the Nevada court had continuing jurisdiction, since the parties appeared in the original action, citing a Nevada statute. It was also held that the Nevada judgment changing custody was presumptively valid and entitled to full faith and credit under the U.S. Const., art. 4, § 1, citing cases at pages 536-537.

In the second Texas case, Bull v. Wilson, 362 S.W.2d 662 (Tex.Civ.App.—San Antonio 1962, no writ) a divorce was granted in Illinois, and the mother was given custody of the child. Later the mother voluntarily delivered the child to the father and moved to Texas. Still later, she returned to Illinois, got the child, and returned to Texas. The father then went into the Illinois court and asked for custody alleging changed condition. At that time both the mother and child were in Texas, and she was served with a non-resident notice. She neither appeared nor answered, and the Illinois court entered an order changing custody to the father. The father then filed a petition asking for a writ of habeas corpus in the District Court of San Antonio where the mother and child resided. The trial court held that Illinois had no jurisdiction over Texas domiciliaries. The Court of Civil Appeals reversed the trial court and held that Illinois had jurisdiction and that the trial court should give full faith and credit to the decree. The Illinois statute was quoted showing the Illinois court had continuing jurisdiction over child custody, citing cases at page 664.

Those are the only two cases we have been cited, or found, which we consider to be in point. The respondent cites Milner v. Gatlin, 261 S.W. 1003 (Tex.Comm’n.App. 1924, jdgmt. adopted), as being in conflict with the two cases cited above. In that case it was held the Texas court which originally granted the divorce and awarded custody of a child had no in personam jurisdiction over the father and child after they moved to Georgia. The significant difference between this latter case and the other two is the matter of continuing jurisdiction. That concept, that is for the courts of this state to retain continuing jurisdiction, had not arrived in the State of Texas and did not arrive until the adoption of the Texas Family Code, effective January 1, 1970. At the time Milner v. Gatlin, supra, was tried, the Texas courts did not have continuing jurisdiction, and there was no in personam jurisdiction over the father and child after they moved to Georgia. As indicated by the Dowden v. Fischer, supra, and Bull v. Wilson, supra, cases, the Texas courts recognized the continuing jurisdiction laws of other states long before Texas adopted that concept for itself.

The pleadings and the point of error in the case before us raise only the single question stated at the beginning of this opinion; that is, whether or not the South Carolina court had jurisdiction over these parties and could order a change of custody. The pleadings in this case raise no issue as to change of conditions subsequent to the September 13, 1973, judgment changing the custody. We are not holding that the jurisdiction of the South Carolina court is exclusive. See Dowden v. Fischer, supra.

Affirmed.

KEITH, Justice

(concurring).

While I concur in the affirmation of the trial court’s judgment, I do so upon different grounds than that relied upon by the majority. The “continuing jurisdiction” concept is only peripherally involved in this case; and, I might add, the grant of continuing jurisdiction in child custody proceedings to courts in Texas has no bearing upon the decision of this cause.

The single question involved is whether the second decree of the South Carolina court granting the mother custody of the child is entitled to full faith and credit in the Texas court. If the South Carolina court had acquired in personam jurisdiction over the father prior to the entry of the change of custody decree, such order was entitled to full faith and credit in the courts of Texas.

The introduction of the South Carolina decree made a prima facie case for the mother and the burden was then upon the father to establish that the court did not have jurisdiction to render it. Mitchim v. Mitchim, 518 S.W.2d 362, 364 (Tex.1975); Tex.Family Code Ann. § 14.10(b)(1) (1975); Seaberg v. Brogunier, 515 S.W.2d 398, 400 (Tex.Civ.App.—Waco 1974, writ ref’d n. r. e.).

A long line of Texas cases has firmly established the rule that foreign custody decrees are entitled to full faith and credit. See, e. g., Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 116 A.L.R. 1293 (1938); Bukovich v. Bukovich, 399 S.W.2d 528 (Tex.1966); Knowles v. Grimes, 437 S.W.2d 816 (Tex.1969). Many decisions of the several courts of civil appeals following the rule are to be found listed in 35 A.L.R.3d 520, 540, “Child Custody — Foreign Judgments,” (1971).

But, under the authoritative decision of May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953), a custody decision without personal jurisdiction over the parent is not entitled to full faith and credit. The equally authoritative decision of Mitchim v. Mitchim, supra (518 S.W.2d at 365), has determined that in personam jurisdiction may be acquired through the use of long-arm statutes in this field.

The South Carolina court acquired in per-sonam jurisdiction over the father in accordance with its statutes and rules; and, the father, with full notice of the hearing on the change in custody, failed to appear at the hearing. If the father has any right to have the custody changed, he still has a remedy available in the courts of South Carolina, not in Texas at this time. Bukovich v. Bukovich, supra; Seaberg v. Brogunier, supra. But, see and compare Rodgers v. Williamson, 489 S.W.2d 558 (Tex.1973).

Thus, while I concur in the affirmation of the judgment of the trial court, I do so upon the ground that the South Carolina court, having acquired in personam jurisdiction over the father, its custodial decree was entitled to full faith and credit in the Texas courts. Knowles v. Grimes, supra (437 S.W.2d at 817). I do not base my concurrence upon the concept of “continuing jurisdiction” as embodied in the Family Code of Texas.


source: Caselaw Access Project

author: EVANS, Justice. COLEMAN, Chief Justice

license: Public Domain

text:
    DICKSON & ASSOCIATES, Appellant, v. James C. BRADY, Appellee.
    No. 16566.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 13, 1975.
    William Dickson, Houston, for appellant.
    Presley E. Werlein, Jr., Houston, for ap-pellee.
   EVANS, Justice.

This suit was brought by appellant, Dickson & Associates, against appellee, James C. Brady, to recover attorney’s fees for legal services allegedly rendered to appellee’s former wife in a prior divorce action. Appel-lee answered and also filed a counterclaim and cross-action. Appellee subsequently filed a motion for summary judgment which the trial court granted, entering an interlocutory judgment that appellant take nothing. This order did not dispose of ap-pellee’s counterclaim and cross-action, but approximately one year later the trial court dismissed the entire cause for want of prosecution.

Appellee has filed motion to dismiss for want of jurisdiction, contending that since no notice of appeal was given with respect to the dismissal order, this court has no jurisdiction over the appeal. We have concluded this motion must be sustained and the cause dismissed.

The interlocutory summary judgment was granted on April 5, 1974. Appellant filed a motion for new trial which was overruled by order dated April 29, 1974, which order contained a notice of appeal from the summary judgment. On April 22, 1975, appellant filed an appeal bond which recited the entry of the summary judgment, the overruling of the motion for new trial and the rendition of an order “on the 7th day of April, 1975, dismissing for want of prosecution the counterclaim filed by James C. Brady against William Dickson et al.” The docket sheet in said cause reflects that a motion to sever was denied on June 17, 1974.

A general order bearing the heading:
“DISMISSAL DOCKET “189th JUDICIAL DISTRICT COURT”

signed on May 1, 1975, recites the following:

“BE IT REMEMBERED, that on the 7th day of April . 1975, the following styled and numbered cases, having heretofore been set down and on that called for trial, and no sufficient answer having been made in the protest thereof, the said cases listed below are hereby DISMISSED FOR WANT OF PROSECUTION and each party is to pay his own costs.”

Apparently attached to this order was a list of cases entitled “Selection of Cases to be Dismissed for Want of Prosecution Effective April 17, 1975, Court No. 189” which includes, among others, the style and number of this cause. No notice of appeal was contained in the order of dismissal nor was such notice separately filed in the cause as required by Rule 353, T.R.C.P. Unless the notice of appeal filed earlier in the case with respect to the interlocutory summary judgment suffices as proper notice under the rules, this court has no jurisdiction over this appeal.

Appellant admits that the order of dismissal entered May 1, 1975, appears to dismiss the entire case but argues that the trial court could not dismiss all the causes of action in this cause due to the fact that it had previously entered the interlocutory summary judgment as to appellant’s cause of action.

It is the well settled rule in Texas, with certain statutory exceptions not here involved, that an appeal will lie only from a final judgment, and that a judgment in order to be final must dispose of all parties and of all issues involved in the suit. North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.Sup.1966). Pri- or to the time a judgment becomes final, the court has plenary power over it and may, on its own motion or on motion of a party, vacate, modify, correct or reform it, according to the justice of the case. Kone v. Security Finance Co., 158 Tex. 445, 313 S.W.2d 281 (1958); Prince v. Peurifoy, 396 S.W.2d 913, 916 (Tex.Civ.App.—Dallas, 1965, no writ). The entry of a final judgment inconsistent in its terms with a prior interlocutory judgment operates to set aside the interlocutory judgment as a necessary result of the application of the rule that only one final judgment may be entered in a case. Dickerson v. Mack Finan cial Corp., 452 S.W.2d 552, 555 (Tex.Civ.App.—Houston [1st], 1969, writ ref’d n. r. e.). The fact that an interlocutory judgment was rendered has no limiting effect on the final judgment actually entered. Texas Crushed Stone Co. v. Weeks, 390 S.W.2d 846, 849 (Tex.Civ.App.—Austin, 1965, writ ref’d n. r. e.).

Since the trial court did not sever the main cause from the rest of the case, the interlocutory summary judgment did not become a final appealable judgment until it was merged into the final judgment rendered on May 1, 1975, disposing of the entire case. Webb v. Jorns, 488 S.W.2d 407 (Tex.Sup.1972); H. B. Zachry Co. v. Thibodeaux, 364 S.W.2d 192 (Tex.Sup.1963); McDonald, Texas Civil Practice, Vol. 4, p. 44. The time for appeal started to run from the entry of the final judgment. 364 S.W.2d 192, 193.

In Thibodeaux the order granting the interlocutory summary judgment contained a notice of appeal. A subsequent order dismissing the cause as to another defendant did not refer to the interlocutory order, did not contain a notice of appeal and no such notice was thereafter given. The Court of Civil Appeals dismissed the appeal stating that the judgment was not final and appealable. The cause was remanded by the Texas Supreme Court and upon such remand, it was held that when the partial summary judgment was made final by entry of the order of dismissal, the entire judgment was made final, including the provision in the summary judgment that notice of appeal had been given. 368 S.W.2d 776.

The distinction between the situation in Thibodeaux and that present here is that in Thibodeaux the order of dismissal related specifically to the suit as against the remaining defendant and did not purport to dismiss the entire cause. Similarly, in Sessions v. Whitcomb, 329 S.W.2d 470 (Tex.Civ.App.—Houston, 1959, writ ref’d n. r. e.), the order of dismissal granting a non-suit as to one of the defendants, expressly provided that an interlocutory summary judgment would amount to a final order upon entry of the order of dismissal. 329 S.W.2d 473.

Under the circumstances of this case, we believe it must be presumed, for appeal purposes, that the trial court’s order of dismissal set aside the terms of the interlocutory order and disposed of the entire case.

Rule 165a, Texas Rules of Civil Procedure, provides in pertinent part:

“A ease may be dismissed for want of prosecution on failure of any party seeking affirmative relief for his attorney to appear for any hearing, trial or docket call of which he had notice, or on failure of such party or his attorney to request a hearing, or to take some other action specified by the court, within fifteen days after the mailing of notices of the court’s intention to dismiss the case for want of prosecution.”

Appellant does not contend that he was not given notice of the proposed dismissal of this cause and indeed the appeal bond reflects his knowledge that the order of dismissal would be entered. Notwithstanding this information, appellant made no attempt to have the cause reinstated under Rule 165a, nor did he file notice of appeal or appeal bond with respect to that order. Since the trial court’s order dismissed the entire cause and did not carry forward into a final judgment the terms of the interlocutory order, the resulting effect of the order of dismissal was to set aside the interlocutory judgment against appellant and to dismiss the entire cause, including both appellant’s suit and appellee’s counterclaim and cross-action, without prejudice. Dickerson v. Mack Financial Corporation, supra; Texas Crushed Stone Company v. Weeks, supra.

The appeal is dismissed for want of jurisdiction.

COLEMAN, C. J., concurring.

COLEMAN, Chief Justice

(concurring).

The case which the court proposed to dismiss, and did dismiss by the judgment entered, was a case which had been filed by the appellant. An interlocutory summary judgment had been previously entered denying the relief which appellant had sought. This judgment did not deal with the appel-lee’s cross-action, and, therefore, was not a final judgment. The court, possibly through inadvertence, set the case on the dismissal docket. There is no basis for an inference that the court intended to dismiss the cross-action only. It is more likely that the court was proceeding under local Rule 12(t), Rules of Procedure for the District Courts of Harris County, providing that cases on file for three years be placed on a dismissal docket. The appellant knew the case was on that docket and failed to protest, or to take action authorized by Rule 165a, T.R.C.P., apparently relying on an assumption that the court’s judgment dismissed the cross-action only.

This court does not agree with that construction of the judgment, and, accordingly, holds that the appeal was not properly perfected. I concur.


author: EVANS, Justice.

text:
    Ophelia PRITCHARD, Administratrix of the Estate of Willie Alyce Snow, Deceased, Appellant, v. Billy Earl SNOW, Administrator of the Estate of Jack Snow, Deceased, Appellee.
    No. 16546.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 13, 1975.
    Rehearing Denied Dec. 11, 1975.
    Hugh F. King, Fort Worth, for appellant.
    Kendall, Randle, Finch & Osborn, Gaynor Kendall, Austin, for appellee.
   EVANS, Justice.

The basic question for determination in this case is whether proceeds from a life insurance policy are community or separate property. This determination requires our construction of the simultaneous death provisions of Section 47, Texas Probate Code, as amended in 1965.

Jack Snow and Willie Alyee Snow, husband and wife, died as the result of an automobile accident on September 2, 1973, and there is no direct evidence that they died other than simultaneously. This suit was brought by the administratrix of the wife’s estate against the administrator of the husband’s estate to recover one-half of the net proceeds of a life insurance policy on the life of the husband, which policy the husband had acquired prior to marriage. The case was tried to the court without a jury upon stipulation of facts and the trial court rendered take-nothing judgment in favor of the husband’s estate. We affirm.

During their marriage, and at the time of their death, the Snows were residents of Texas. No children were born of their marriage and both died intestate.

In 1958, during a prior marriage to Thelma Leota Snow, Jack Snow had acquired an ordinary life insurance policy on his life from Southwestern Life Insurance Company in the amount of $10,000.00 with double indemnity payment provisions in the event of his accidental death. At the time this policy was acquired, Thelma Leota Snow was designated primary beneficiary and Jack Snow’s daughter was designated secondary beneficiary. Jack and Thelma Snow were divorced in 1961 and the following year Jack Snow changed the beneficiary designation under the policy to his brother, Billy Earl Snow and his sister-in-law, Laura N. Snow, respectively, as primary and secondary beneficiaries.

On December 29, 1965, Jack and Willie Alyce Snow were married and on July 22, 1970, by endorsement, the beneficiary designation was changed to Willie Alyce Snow with no contingent or secondary beneficiary being designated. Under the printed provisions of the policy the proceeds were payable to the insured’s estate in the event he was not survived by his wife, Willie Alyce Snow. No change was thereafter made in the beneficiary designation and Willie Alyce Snow was the designated beneficiary of the policy at the time of the parties’ death.

Fixed premiums on the policy were paid monthly by Jack Snow in the amount of $24.04 each, and there is no evidence that Jack Snow had any source of income from his separate estate after his marriage to Willie Alyce Snow. He did earn wages from regular employment during their marriage. On August 27,1973, six days prior to the death of the parties, a loan in the amount of $2,831.12 was made against the policy and the proceeds were deposited in a joint bank account of the parties.

The evidence established that two other life insurance policies had been issued on the life of Jack Snow. In one he named his wife, Willie Alyce, as primary beneficiary and his brother as secondary beneficiary; in the other he named his wife, Willie Alyce, as sole beneficiary. One policy on the life of Willie Alyce Snow designated her husband, Jack Snow, as primary beneficiary and her brother-in-law, Billy E. Snow, as secondary beneficiary. The proceeds of those policies are not in dispute.

The trial court concluded that since the Southwestern Life Insurance policy had been acquired by Jack Snow prior to his marriage to Willie Alyce Snow, it belonged to his separate estate at the time of his death and in consequence his estate was the legal owner of the policy and entitled to the proceeds thereof.

In her first two points of error appellant asserts the trial court erred in this conclusion and in construing Subsection 47(b) of the Texas Probate Code as being applicable to life insurance proceeds only if it can be proved that the policy was owned by the community estate.

Appellant relies principally upon Sherman v. Roe, 153 Tex. 1, 262 S.W.2d 393 (1953). In that case, which was decided prior to the adoption of the Texas Simultaneous Death Act, there existed no presumption of survivorship even though there was no evidence that the parties died other than simultaneously. A certificate of insurance under a group life insurance policy on the life of the husband had been issued during the existence of his prior marriage and his wife of that earlier marriage had been designated as beneficiary. After his second marriage the group policy certificate was increased from $2,000.00 to $9,000.00 and all of the premiums were paid after that marriage out of community funds. The second wife was designated as the beneficiary of the policy, to whom the benefits were payable “if surviving the Employee, and otherwise to the estate of the Employee.” The Texas Supreme Court concluded that since the facts of survivorship could not be proved, proceeds of the insurance policy should be deemed community effects under the statutory presumption that “all the effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as community effects or gains, unless the contrary be satisfactorily proved.” The court reasoned:

“In our opinion it should be presumed that the payment of premiums by James Roe after his marriage to Edna I. Roe were made from community funds. State v. Jones, Tex.Civ.App., 290 S.W. 244, 250, reversed on other grounds, Tex.Com.App., 5 S.W.2d 973; Martin v. Moran, 11 Tex.Civ.App. 509, 32 S.W. 904, 906. Furthermore, the insurance was maintained by these payments and by his continuing to work as employee of the company insured by the group policy. The greater part of the insurance was procured after James Roe and Edna I. Roe were married. Whatever rights to the proceeds of the insurance might accrue to him as his separate property on account of his having procured the insurance for $2,000 before his marriage to Edna I. Roe or by his payments of premiums before his marriage to her in our opinion passed to the community when, after his marriage to Edna I. Roe, he paid the premiums out of community funds, made her the beneficiary, and increased the amount of the insurance to $9,000. Under this state of facts the ownership of the proceeds of the certificate is to be determined in the same way as if the certificate had been issued after James Roe and Edna I. Roe were married and all premiums paid out of community funds.” (262 S.W.2d 397)

Appellee contends that the case is controlled by the reasoning of McCurdy v. McCurdy, 372 S.W.2d 381 (Tex.Civ.App.—Waco, 1963, writ ref.). In that case, which was decided after the enactment of the Simultaneous Death provisions in the Texas Probate Code, but prior to the 1965 amendments, the husband had acquired two life insurance policies prior to his marriage which named his estate as beneficiary. Total premiums on the two policies in the amount of $10,094.66 were paid prior to marriage and $657.60 paid during coverture from community funds. Upon the husband’s death his widow sought action against his executor to determine the status of the insurance proceeds. The court held that the proceeds of the policies constituted the separate estate of the deceased insured but that the community was entitled to reimbursement on the basis of the premiums paid with community funds. Through Justice Wilson the court stated at page 382:

“In Brown v. Lee, Tex., 371 S.W.2d 694, 7 S.Ct.J., 10, The Supreme Court said that by amendment of the definition of ‘property’ in Art. 23(1), Vernon’s Ann.Tex. Stats., to include ‘life insurance policies, and the effects thereof’, the Legislature has ‘aligned Texas with other community property states in adhering to the theory that the right to receive insurance proceeds payable at a future but uncertain date is “property.” Such property is said to be in the nature of a chose in action which matures at the death of the insured.’ In that case, however, the policy was also issued during coverture.
“In approaching solution to this problem we must look somewhat beyond the immediate consequences of decision in this ease. A dominant factor in our conclusion is an effort, within the broad principles of dissonant precedent, to fit life insurance proceeds under the present facts to the pattern of Texas community property law as applied to other types of property. This the Legislature has apparently sought to do by amending Art. 23, Sec. 1.
“That pattern, as to realty, title to which is acquired before marriage, and a portion of the consideration for which is thereafter paid from community, fixes the character of title at the time of its inception or acquisition. It ‘depends upon the existence or nonexistence of the marriage at the time of the ineipiency of the right in virtue of which the title is finally extended.’ Creamer v. Briscoe, 101 Tex. 490, 109 S.W. 911, 912, 17 L.R.A.,N.S., 154, 130 Am.St.Rep. 869. In such a case as this, realty is held to be the husband’s separate property. Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 328, 334.
“We think our decision harmonizes with what is said to be elsewhere the general rule: ‘If either spouse before marriage procures a policy of life insurance on his own or another’s life, in his favor or in favor of his estate, the policy and its proceeds are his separate property. His rights to the proceeds date from the policy.’ McKay, Community Property (2d ed.) Sec. 479, p. 316. . . .”

The pertinent provisions of Section 47 of the Texas Probate Code, as amended in 1965, read as follows:

“(b) Disposal of Community Property. When a husband and wife have died, leaving community property, and there is no direct evidence that they have died otherwise than simultaneously, one-half of all community property shall be distributed as if the husband had survived, and the other one-half thereof shall be distributed as if the wife had survived. The provisions of this subsection apply to proceeds of life or accident insurance which are community property and become payable to the estate of either the husband or the wife, as well as to other kinds of community property.
“(e) Insured and Beneficiary. When the insured and a beneficiary in a policy of life or accident insurance have died and there is no direct evidence that they have died otherwise than simultaneously, the insured shall be deemed to have survived the beneficiary for the purpose of determining the rights under the policy of the beneficiary or beneficiaries as such. The provisions of this subsection shall not prevent the application of subsection (b) above to the proceeds of life or accident insurance which are community property.”

In these amendments the legislature deviated from the amendment proposed by the National Conference on Uniform State Laws for the Uniform Simultaneous Death Act. The amendment proposed by the National Conference provided as follows:

“Section 5. Insurance Policies. Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously the proceeds of the policy shall be distributed as if the insured had survived the beneficiary, except if the policy is the community property of the insured, and his spouse, and there is no alternative beneficiary, or no alternative beneficiary except the estate or personal representatives of the insured, the proceeds shall be distributed as community property under Section 4.”

Subsec. 4 of the Uniform Act corresponds with the first sentence of Subsec. 47(b) of our Texas Probate Code.

Appellant urges that the Texas legislature’s deviation from the amendatory language proposed by the National Conference signifies legislative intent that the disposition of “proceeds” as community property should not be conditional upon the policy itself being community property. She urges that the application of Subsec. 47(b) is dependent upon the proceeds being community property and that by adding Subsection 47(e) the legislature indicated its intent that no presumption regarding survival would affect or determine disposition under Subsection 47(b) with respect to proceeds which are classified as community property.

It is appellee’s contention, on the other hand, that Subsections (b) and (e) of Section 47 are applicable only if it is first determined that the policy proceeds “are community property” and the statute is silent as to what tests are to be employed in ascertaining whether the proceeds belong to one estate or the other.

In view of the Texas Supreme Court’s outright refusal of application for writ of error in McCurdy v. McCurdy, supra, we believe the inception of title test must first be applied to determine whether the proceeds of insurance are owned by the separate or community property. In Brown v. Lee, 371 S.W.2d 694 (1963), the Texas Supreme Court speaking through Chief Justice Greenhill stated:

“When purchased with community funds, the ownership of the unmatured chose logically belongs to the community, unless it has been irrevocably given away under the terms of the policy, i. e., where the purchaser has, without fraud, foreclosed to change the named beneficiary The proceeds at maturity are likewise community in character, except where the named beneficiary is in fact surviving, in which case a gift of the policy rights to such beneficiary is presumed to have been intended and completed by the death of the insured.” 371 S.W.2d 696.

As reflected by the opinion in McCurdy, the policy in Brown v. Lee had been issued during marriage. Thus, the proceeds of the policy were as a consequence community. See also Salvato v. Volunteer State Life Insurance Co., 424 S.W.2d 1 (Tex.Civ.App.—Houston [1st], 1968, no writ); Amason v. Franklin Life Insurance Co., 428 F.2d 1144 (5th Cir. 1970). Since the policy in the case before us was separate in character, the trial court correctly determined the proceeds thereof to be separate. It also correctly concluded that the community’s right to reimbursement for policy premiums paid out of community funds had been fully discharged by deduction of the outstanding loan indebtedness from the policy proceeds.

In her third point of error appellant contends that the trial court’s finding that Jack Snow did not make any gift or other transfer of a property interest in the policy to Willie Alyce Snow is contrary to and inconsistent with the stipulated facts. We find no evidence in the stipulated facts which would preclude the trial court from making this finding.

In her fourth and last point appellant contends that the trial court erred in failing to find, as a matter of law, that the right of Willie Alyce Snow to receive the insurance proceeds was a property interest that matured on the death of the insured. We find it unnecessary to discuss this point in view of our determination of the first two points of error.

The judgment of the trial court is affirmed.


author: REYNOLDS, Justice.

text:
    Ruth SIEGEL and the Estate of Joe W. Siegel, Deceased, Appellants, v. McGAVOCK DRILLING COMPANY, a Texas Corporation, Appellee.
    No. 8619.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 17, 1975.
    Rehearing Denied Dee. 15, 1975.

      Whittenburg Law Firm, George Whitten-burg, Amarillo, for appellants.
    Sanders, Saunders, Brian, Finney & Thomas, Ronald D. Nickum, Amarillo, for appellee.
   REYNOLDS, Justice.

The result of this appeal is determined by the answer to this question: is a take-nothing summary judgment authorized where the exhibits attached to plaintiffs’ sworn account established defendant-movant’s affirmative defense of limitation, to avoid which plaintiffs plead payment by defendant’s written instrument, not as the cause of action on a new promise, but as a sufficient acknowledgment of the account sued on to renew the running of limitation? Texas law dictates an affirmative answer. Affirmed.

Plaintiffs Ruth Siegel and the Estate of Joe W. Siegel, Deceased, filed this suit on October 25, 1974, against defendant McGa-vock Drilling Company, a Texas corporation, in the nature of a sworn account to recover the balance due for merchandise shown by attached invoices to have been sold and delivered from March of 1966 through December of 1968. McGavock answered with a verified pleading, stating that each and every item of the account was not just or true and asserting the affirmative defense of the four-year statute of limitation, Article 5527. Siegel responded with a supplemental petition affirming that the “cause of action herein arises from the sale of goods on an open account,” and alleging that payments made on the account in 1970 by McGavock’s written instrument, and particularly the payment by McGavock’s check dated November 16,1970, constituted a sufficient acknowledgment under Article 5539 “to renew the running of the statute from November 16, 1970, giving plaintiffs four years from that date, or until November 16, 1975 (sic), to file suit.” McGavock moved for summary judgment by an unsworn motion, a ground for which was that plaintiffs’ cause of action was barred by the four-year statute of limitation. The trial court, finding that the four-year statute of limitation barred the debt sued upon, granted the motion and rendered judgment that Siegel take nothing.

To reverse the judgment, Siegel contends, first, that McGavock offered no summary judgment proof and the pleadings alone cannot be regarded as summary judgment evidence, citing Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540, 545 (Tex.1971); second, that McGavock’s November 16, 1970 check payment constituted a written acknowledgment sufficient to renew the running of the statute of limitation for four years from that date, citing Article 5539; and third, that there is a material fact issue whether McGavock’s November 16, 1970 check constituted a sufficient acknowledgment, because McGavock offered no summary judgment proof to negate the existence of the written instrument, citing Zale Corporation v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.1975).

Hidalgo, supra, does hold that, except where summary judgment is authorized on deficiencies in the opposing pleadings, the pleadings, even if sworn, do not constitute summary judgment evidence; but the summary judgment record we review contains more than mere pleadings. Here, the invoices which form the foundation of plaintiffs’ cause of action on a sworn account are attached to Siegel’s own petition. These exhibits show that the last sale of merchandise was made more than four years before the suit was filed and establish McGavock’s affirmative defense of the four-year statute of limitation as a matter of law. “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934, 936 (Tex.1972).

In seeking to avoid the bar of limitation, Siegel points to plaintiffs’ first supplemental petition pleading that McGavock acknowledged the account in writing (by its payment with the November 16,1970 check) within four years from the date of the account, and insists that this check payment is sufficient, under Article 5539, to renew the running of limitation until November 16, 1974, a date after this suit was filed. The check which Siegel relies on as an acknowledgment of the account sued upon is neither fully set out in Siegel’s pleadings nor made a part of the record and, consequently, it is impossible to determine if it meets the requirements of an acknowledgment under Article 5539; however, mere payment by itself neither interrupts the running of limitation on the debt, Stein v. Hamman, 118 Tex. 16, 6 S.W .2d 352, 353 (1928), nor acknowledges the justness of the debt with an implicit promise to pay it. Meusebach v. Halff, 77 Tex. 185, 13 S.W. 979, 980 (1890).

When the debtor signs a written acknowledgment of his previous debt, Article 5539 does not operate to suspend limitation or to revive the original agreement; its office is to support an action on the promise to pay that is stated in or implied by the debtor’s written acknowledgment of the justness of the creditor’s claim which is independent of, but made in consideration for, the previous debt. Coles v. Kelsey, 2 Tex. 541, 556—57 (1848); Cain v. Bonner, 108 Tex. 399, 194 S.W. 1098 (1917). If, as here, more than four years have intervened between the time the debt was due and the date the suit was filed, the bar of limitation is complete and the cause of action on the original debt is gone; but the old debt, even if barred by limitation, is consideration to support a cause of action brought within four years on the new promise to pay the debt embraced in a written acknowledgment of its justness. Coles, supra, 2 Tex. at 548; Cain, supra, at 1098. Thus, although action on the old debt is barred by limitation, Article 5539 operates to prevent that limitation bar from defeating the cause of action brought on the new promise to pay the old debt.

However, to recover on the new promise to pay embraced in the acknowledgment of the previous debt, the new promise to pay must be specifically pleaded as the cause of action in order to avoid the pleaded bar of limitation to the original debt. Hanley v. Oil Capital Broadcasting Ass’n, 141 Tex. 243, 171 S.W.2d 864, 866 (1943). But here, Siegel has not pleaded a cause of action on a new promise to pay arising from the alleged acknowledgment by the check; recovery is only sought on the original account which, as the record establishes, is barred by limitation as a matter of law. Cf. Canon v. Stanley, 100 S.W.2d 377, 378 (Tex.Civ.App.—El Paso 1936, no writ). With the plea of limitation established to the cause of action pleaded on the original account, Siegel was left without any maintainable action on it and, a new promise to pay not being asserted as the cause of action, Siegel’s suit was at an end. Cain, supra, at 1099.

The holding in Zale Corporation v. Rosenbaum, supra, which Siegel relies on for reversal is not applicable to the facts here. That holding is: where the non-mov-ant interposes a suspension statute, such as Article 5537 (which provides that the time a debtor is absent from the state shall not be counted in computing the limitation period), in resisting a summary judgment motion based on the affirmative defense of limitation, the limitation defense is not established as a matter of law until the movant meets his burden of negating the applicability of the suspension statute. Siegel, however, did not plead any statutory suspension of limitation to the original account sued upon; rather, Siegel pleaded Article 5539 in response to McGavock’s affirmative defense of limitation. As has been noted, Article 5539 is not a suspension statute and it does not operate to prevent the running of limitation on the cause of action pleaded on the original account. See, also, Clarke v. General Supply Co., 10 S.W.2d 1037, 1038 (Tex.Civ.App.—San Antonio 1928, no writ).

The summary judgment is affirmed.

      . All cited articles are referenced to the number under which they appear in Vernon’s Annotated Revised Civil Statutes of the State of Texas.

      . Art. 5539. Acknowledgment must be in writing
      When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby.

      . Fn. 1, 462 S.W.2d 543, as, for example, “when the plaintiffs petition fails to state a legal claim or cause of action.” But cf. Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974), which holds that summary judgment on pleadings insufficient to state a cause of action is improper, the proper attack on the deficiency of pleading being by special exceptions.


author: PHILLIPS, Chief Justice.

text:
    Margie HARDT, Individually and as Administratrix of the Estate of Charles Hardt, Deceased, et al., Appellants, v. TEXAS DEPARTMENT OF CORRECTIONS, Appellee.
    No. 12331.
    Court of Civil Appeals of Texas, Austin.
    Nov. 19, 1975.
    William F. Seerden, Kilgore, Cole, Seer-den & McManus, Victoria, for appellants.
    John L. Hill, Atty. Gen., Jack Sparks, Asst. Atty. Gen., Austin, for appellee.
   PHILLIPS, Chief Justice.

Appellant brought this suit in Travis County under the provisions of the Texas Tort Claims Act (Tex.Rev.Civ.Stat.Ann. art. 6252 — 19) for the death of her husband who was killed in a construction accident in Walker County while in the custody of the Texas Department of Corrections. No motion was made to transfer this case from Travis County to Walker County. The trial court sustained the State’s plea in abatement to the effect that suit must be brought in the county where the injury occurred, and dismissed the suit for want of jurisdiction. We affirm this judgment.

Section 5 of the Texas Tort Claims Act (Tex.Rev.Civ.Stat.Ann. art 6252 — 19) provides that “All cases arising under the provisions of this Act shall be instituted in the county in which the cause of action or a part thereof arises.”

Appellant contends that this provision relates to venue only and is not jurisdictional. In support of this position, she cites Aviation Credit Corporation v. University Aerial Service Corporation, 59 S.W.2d 870 (Tex.Civ.App.1933, writ dism’d by agr.). We do not agree. The universal rule of long standing is that since the State may withhold entirely its consent to be sued, it may impose such conditions and limitations thereon as it may deem desirable and that it cannot be sued other than in the courts and places in which it has consented that suit may be maintained against it. State v. Isbell, 127 Tex. 399, 94 S.W.2d 423 (1936, opinion adopted); Martin v. State, 75 S.W.2d 950 (Tex.Civ.App.1934, no writ); Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73 (1939); Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1946).

We hold that the trial court was correct in sustaining appellee’s plea in abatement and in dismissing the suit for want of jurisdiction because the suit was filed in a county not authorized by the Texas Tort Claims Act.

Affirmed.


author: MOORE, Justice.

text:
    M. R. WISE et ux., Appellants, v. Chris SKELTON et al., Appellees.
    No. 885.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 20, 1975.
    Rehearing Denied Dec. 18, 1975.

      John G. Patterson, Patterson & Patterson, Houston, for appellants.
    William Drew Perkins, Lufkin, for appel-lees.
   MOORE, Justice.

Plaintiff, M. R. Wise and wife, Frankie Wise, sued defendant, Chris Skelton, for personal injuries and damages to their automobile growing out of a collision between their respective vehicles. As grounds for a cause of action, plaintiffs alleged that the defendant was guilty of negligence proximately causing the collision. Defendant, Chris Skelton, answered with a general denial and alleged that contributory negligence of M. R. Wise, the driver of the plaintiff’s automobile, was a proximate cause of the collision. Trial was before a jury. In response to the special issues, the jury found Skelton guilty of negligence on the issues of speed, lookout, application of his brakes and in failing to keep his automobile within the right half of the roadway, and found that each of such acts was a proximate cause of the collision. The jury further found that the plaintiff, M. R. Wise, was guilty of contributory negligence in that he failed to keep a proper lookout, and that such failure was a proximate cause of the collision. After the verdict was returned, plaintiffs moved the court to disregard the finding that M. R. Wise was guilty of contributory negligence in failing to keep a proper lookout and to disregard the jury’s finding that such failure was a proximate cause of the collision. The motion was overruled and judgment was entered that the plaintiffs take nothing against defendant. After their motion for new trial had been overruled, plaintiffs perfected this appeal.

We affirm.

Six points of error are relied upon by the plaintiffs for reversal. The first and third points complain of the judgment on the ground that there was no evidence to support the submission of Special Issues Nos. 23 and 24, and no evidence to support the jury’s findings on Special Issues Nos'. 23 or 24 wherein the jury found plaintiff, M. R. Wise, guilty of failure to keep a proper lookout proximately causing the collision.

Before passing on these points we will undertake a brief summary of the evidence. There are some parts of the testimony about which there is no conflict. The evidence shows that on the date of the accident, Mr. and Mrs. Wise had picked up their neighbor, H. E. Casey, at his home on Highway 225 after which they attended a cattle auction. Mr. Casey’s home was situated on the west side of Highway 225 facing the highway which runs north and south. The Wise home was also situated a short distance west of Highway 225 north of the Casey home. Some time after dark the parties left the auction sale and Mr. Wise drove north on Highway 225 to the Casey home where Mr. Casey left the Wise vehicle. In order for Mr. and Mrs. Wise to reach their home after leaving the Casey home, it would have been necessary for them to have continued traveling north on Highway 225 for a distance of approximately 200 feet and then make a left turn on a small dirt road leading west to their home.

There is a hopeless conflict in the evidence as to where the two vehicles were situated at the time of the collision.

Both Mr. and Mrs. Wise testified that when they returned to the Casey home, Mr. Wise turned left off Highway 225 and drove up in the Casey yard with the headlights pointed toward the door steps so as to assist Mr. Casey in finding his way. They testified that at the time they stopped in the yard the rear wheels of their vehicle were ten feet from the highway. They further testified that, while thus parked in the Casey yard, waiting for Mr. Casey to reach the door steps, the defendant’s vehicle left the highway, traveled some 200 feet along the shoulder and into the Casey yard and struck the front end of their automobile. Mr. Wise testified that at the time of the impact he was looking straight ahead at the Casey home watching Mr. Casey. Plaintiffs called two other witnesses who testified that on the following morning they examined the tire marks made by the Skel-ton vehicle and that by following the tire marks they were of the opinion the impact occurred in Mr. Casey’s front yard.

According to the testimony of defendant, Chris Skelton, and his passenger, the Skel-ton automobile was traveling south on Highway 225. Immediately before the impact, they had come around a curve and over a small hill and were suddenly blinded by the headlights of the Wise automobile. Skelton testified that at the time of the impact the Wise vehicle was either stopped or was traveling partly on the paved portion of the highway and partly on the shoulder in his lane of traffic. He testified that although he applied his brakes he was unable to stop and the two automobiles struck head-on. Jeffery Barnhart, Skelton’s passenger, gave a similar version. He testified, however, that immediately before the impact he observed the Wise vehicle to be traveling toward them with all four of its wheels in their right-hand lane of traffic; that immediately before the impact it appeared that two of the wheels of the Wise vehicle had gotten over on the shoulder of the roadway. He testified the vehicles collided head-on and the photographs offered by both parties show that only the front of the vehicles were damaged. While both witnesses testified the collision occurred on the highway, their testimony is somewhat vague as to the point of impact with reference to the Casey home. We gather from their testimony that it occurred on the highway somewhere near the Casey yard.

In passing on the merits of the “no evidence” points, this court is required to view the evidence in its most favorable light in support of the jury’s findings, considering only the evidence and inferences which support those findings and rejecting any evidence and inferences contrary to the findings. Butler v. Hanson, 455 S.W.2d 942, 944 (Tex.1970); Miller v. Riata Cadillac Co., 517 S.W.2d 773, 776 (Tex.1974). If there is any evidence of probative force to support the jury’s findings, the appellate court is not authorized to set aside the jury’s verdict and substitute its own findings for that of the jury. City of Tyler v. Brogan, 437 S.W.2d 609, 612 (Tex.Civ.App.—Tyler 1969, no writ); Goree v. Hansen, 214 S.W.2d 824 (Tex.Civ.App.—Fort Worth 1948, no writ).

Plaintiffs argue that in determining whether there is any evidence to support the finding of a failure to keep a proper lookout on the part of Mr. Wise, this court is required to consider not only the evidence but must also consider other findings made by the jury in response to Special Issues Nos. 17 and 20. By Special Issue No. 17 the court inquired as to whether M. R. Wise pulled on the highway at a time when the same could not be done with safety and by Special Issue No. 20 the court inquired as to whether M. R. Wise parked his vehicle on the wrong side of the road. The jury answered both issues “no.” Plaintiffs take the position that these findings establish facts showing M. R. Wise did not drive his vehicle on the highway when it could not be done with safety, and did not park his vehicle on the wrong side of the road. Plaintiffs argue that these findings compel the conclusion that plaintiffs were, in fact, parked off the highway on private property at the time of the impact; therefore, M. R. Wise, as a matter of law, had no duty to keep a proper lookout. We cannot agree with this proposition.

Properly interpreted, these findings amount to nothing more than a failure or refusal by the jury to find from a preponderance of the evidence that he drove his vehicle on the highway when it could not be done with safety or was parked on the wrong side of the road. The jury’s answers mean, in law, only that the defendant failed to carry his burden of proving such facts. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194, 195 (Tex.1966). The findings mean only these facts were not established. Moreover, it is well settled that the court may not look to answers to other issues for the purpose of determining whether an answer to a particular issue has support in the evidence. C. & R. Transport, Inc. v. Campbell, supra (citing cases). Consequently, we are not permitted to consider these findings in determining whether there is any evidence of probative force to support the jury’s finding that M. R. Wise failed to keep a proper lookout.

When the jury found that M. R. Wise failed to keep such a lookout as a person in the exercise of ordinary care would have kept, it necessarily found that the plaintiff had a duty to keep a lookout for danger which might have reasonably been anticipated, DeWinne v. Allen, 154 Tex. 316, 277 S.W.2d 95, 99 (1955), and a breach of the duty. C. & R. Transport v. Campbell, supra.

When viewed in a light most favorable to the jury’s verdict, we hold that the testimony of Skelton and his passenger supports the jury’s answers to Issues 23 and 24. From their testimony the jury could have reasonably inferred M. R. Wise had driven out of the Casey yard and was driving either on, or partially on, the highway at the time of the impact; that a reasonably prudent person exercising ordinary care would have maintained a proper lookout, and had plaintiff done so he could have seen defendant’s approaching vehicle and could have avoided the collision by taking some evasive action.

By the second and fourth points, plaintiffs seek a reversal on the ground that Special Issues 23 and 24 are so against the overwhelming weight and preponderance of the evidence as to be clearly wrong. We are not in accord with this proposition.

After weighing and balancing all of the evidence in the record, both that in favor of the jury’s finding, as well as that against the findings, we have concluded that we would not be justified in holding that the verdict and judgment based thereon is so against the overwhelming weight and preponderance of the evidence as to be clearly wrong. Plaintiffs’ second and fourth points are overruled.

Our discussion of plaintiffs’ first two points of error disposes of the contentions made under the remaining points five and six and they are therefore overruled without discussion.

The judgment is affirmed.


text:
    In the Matter of P A O, Appellant.
    No. 16552.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 20, 1975.
    David B. Ziegler, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Sara McIntosh, Asst. Dist. Atty., Houston, for appel-lee.
   EVANS, Justice.

This is an appeal from an order of the Juvenile Court of Harris County, Texas, modifying an order of disposition entered at a prior hearing.

At the prior hearing held on March 4, 1974, the child in question, then fifteen years of age, was adjudged to have engaged in delinquent conduct upon a finding that he had committed burglary. By its order entered March 6, 1974, the court committed the child to the custody of the Chief Juvenile Probation Officer of Harris County for further placement under specified rules of probation for a one year period. On September 4, 1974, the child was ordered released from the Harris County Youth Village and custody was placed in his mother upon the same rules of probation and under supervision of the Harris County Juvenile Probation Department.

On November 11, 1974, a petition to modify disposition was filed in the proceedings, wherein it was represented that the child had violated the rules of his probation in that on or about October 15, 1974, “he ran away from his court placement without lawful permission.” An attorney ad litem was appointed to represent the child and on November 27, 1974, an answer was filed on the child’s behalf. On March 13, 1975, the trial court sitting without a jury determined that the child had violated the terms of his probation by leaving his court placement without permission and ordered the child committed to the Texas Youth Council.

In two points of error it is asserted that the trial court abused its discretion in revoking the child’s probation and that there was “no evidence” and, alternatively, “insufficient evidence” to support the court’s finding that the child had violated the specified rule of probation.

Section 54.04 of the Texas Family Code provides that if a trial court upon the disposition hearing finds that the child is in need of rehabilitation or that the protection of the public or the child requires that disposition be made, it may:

“(1) place the child on probation on such reasonable and lawful terms as the court may determine for a period not to exceed one year, subject to extensions not to exceed one year each:
“(A) in his own home or in the custody of a relative or other fit person;
“(B) in a suitable foster home; or
“(C) in a suitable public or private institution or agency, except the Texas Youth Council; or
“(2) if the court or jury found at the conclusion of the adjudication hearing that the child engaged in delinquent conduct, the court may commit the child to the Texas Youth Council.”

This section further states that the trial court shall state specifically in its order its reasons for the disposition and shall furnish a copy of the order to the child; that if the child is placed on probation, the terms of probation shall be written in the order.

It was stipulated in these proceedings that the child had been adjudicated to have engaged in delinquent conduct on March 4, 1974, and had been placed in the custody of the Chief Juvenile Probation Officer of Harris County for further placement under the rules of probation as set forth by the court conditioned, among other things, that the child would not leave his court placement without lawful permission. The court’s order entered March 6, 1974, with the rules of probation appended thereto, is contained among the instruments in the transcript. The rules of probation are shown to have been signed by the child and no contention is made on this appeal that the terms of probation were not “written in the order” as contemplated by the Code.

Section 54.05 of the Texas Family Code, relating to the proceedings to modify disposition, provides, insofar as pertinent here:

“(f) A disposition based on a finding that the child engaged in delinquent conduct may be modified so as to commit the child to the Texas Youth Council if the court after a hearing to modify disposition finds beyond a reasonable doubt that the child violated a reasonable and lawful order of the court.”

The State’s only witness, the child’s mother, testified that the child was living with her on October 15, 1974, and on that date left home. She further testified:

“Q. And was it with or without your permission?
“A. Neither one, because I didn’t know he was leaving. He come back home. He had been to town. He wanted his social security number because he said he had a job and I gave it to him.
“Q. So, if you didn’t know he was leaving, then you didn’t give him permission, is that correct?
“A. I didn’t tell him he could or he couldn’t. I didn’t know he was leaving, that is right.
“Q. You didn’t know he was leaving?
“A. I did not know he was leaving.”

On cross-examination the child’s mother continued:

“Q. If Phillip would have asked you for permission to leave home, would you have given it to him?
“A. Definitely, because Phillip is just too old for me to say he can or cannot stay, and I am this way, if a child doesn’t want to be with me, I won’t force him to stay with me.”

The child’s mother further testified that her son had been gone a period of two full days and that she had someone drive her to Oklahoma to get him. She testified that she learned he was in Oklahoma when a detention home there called her next door neighbor and that prior to that time she did not know the whereabouts of her child.

The juvenile courts are granted broad powers and discretion in determining suitable disposition of children who have been adjudicated to have engaged in delinquent conduct or in conduct indicating a need for supervision. Echols v. State, 481 S.W.2d 160 (Tex.Civ.App.—Houston [14th], 1972, no writ). This is especially true in a proceeding to modify disposition. Echols v. State, supra; In re Hoskins, 198 S.W.2d 460 (Tex.Civ.App.—Amarillo, 1946, writ ref’d n. r. e.). The question for our determination is whether, upon the record before us, the trial court abused this discretion in finding beyond a reasonable doubt that the child left his mother’s home without permission.

It has been stated that permission may be either “express or implied.” Hartford Accident & Indemnity Corp. v. Lowery, 490 S.W.2d 935 (Tex.Civ.App.—Beaumont, 1973, writ ref’d n. r. e.). It has also been stated that the word implies “knowledge and consent.” McKee v. Travelers Ins. Co., 315 S.W.2d 852, 857 (Mo.Ct.App.—St. Louis, 1958). It has been said the word contemplates “something more than mere sufferance or tolerance without taking steps to prevent . . .” Haynes v. Linder, 323 S.W.2d 505, 510 (Mo.Civ.App.—Kansas City, 1959); see also 70 C.J.S. Permission pp. 564-5.

Under the circumstances present here, the rules of probation imposed an affirmative duty on the child to obtain the permission of his mother before leaving home. There is no evidence in the record from which the grant of this permission could reasonably be implied. The evidence negates against any inference that the child left home with his mother’s knowledge or consent. Her testimony clearly reflects her consent was neither sought nor given. Upon the stipulations and testimony, the trial court was justified in finding beyond a reasonable doubt that the child left home without obtaining the permission of his mother.

Affirmed.


author: COLEMAN, Chief Justice.

text:
    Adrian F. MEYER et ux., Appellants, v. Sam P. WORDEN et ux., Appellees.
    No. 16482.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 20, 1975.
    Rehearing Denied Dec. 18, 1975.

      Fred A. Lange, Houston, for appellants.
    W. H. Betts, Hempstead, for appellees.
   COLEMAN, Chief Justice.

Appellees (the Wordens) brought this action in trespass to try title for the purpose of removing clouds upon their title to approximately 292 acres of land bordering upon the Brazos River. The case was tried to a jury, but at the conclusion of the defendants’ evidence the trial court granted the Wordens’ motion for instructed verdict, and rendered judgment establishing the Wordens’ title to 288 acres of the subject tract. The Meyers’ plea of adverse possession under the ten year statute of limitation was sustained as to 4 acres of the land. We affirm.

The principal issue in the case relates to certain lands bordering the Brazos River which have been formed by accretion. The Meyers contend that the boundary line between their land and that of the Wordens as drawn by the court in its judgment does not properly apportion this accreted land between the parties.

In perfecting the record for appeal, the Meyers requested and filed only a partial statement of facts consisting of certain documentary evidence and certain testimony admitted at the trial. The Wordens did not request that other evidence taken at the trial be transcribed into the statement of facts. The parties did not stipulate that the partial statement of facts constituted an agreed statement. While appellants have carefully followed the requirements of Rule 377, Texas Rules of Civil Procedure, relating to limited appeal, they have a burden to present a record sufficient to show that the judgment is erroneous in order to obtain a reversal. When the complaint is that the evidence is factually or legally insufficient to support vital findings of fact, or that the evidence conclusively refutes vital findings, this burden cannot be discharged in the absence of a complete or an agreed statement of facts. The Englander Company, Inc. v. Jack G. Kennedy, 428 S.W.2d 806 (Tex.1968). Where there is no statement of facts in the record, it is settled that every presumption must be indulged in favor of the judgment, which is not concluded by the record. McElyea v. Parker, 125 Tex. 225, 81 S.W.2d 649 (Tex.Com.App. § B 1935). This rule has been applied to the action of a trial court in granting a judgment non obstante veredic-to. Chavers v. Lucenay, 329 S.W.2d 503 (Tex.Civ.App.—Waco, 1959, no writ hist.). See also Sanders v. Machicek, 453 S.W.2d 511 (Tex.Civ.App.—Houston [14th], 1970, writ ref’d n. r. e.); Meinders v. Shamrock Oil & Gas Corp., 401 S.W.2d 106 (Tex.Civ.App.—Amarillo, 1966, no writ hist.).

Since the judgment in this case was rendered on an instructed verdict, this court must view the evidence in its most favorable light to the defendants, Meyers, in determining whether or not issues of fact were raised by the evidence. Even though that portion of the evidence omitted may have been unfavorable to defendants, the only burden defendants have on this appeal is to show that the evidence raised issues of fact and not that such issues were proved as a matter of law, or by the weight of the evidence. Coleman v. Hudson Gas & Oil Corp., 403 S.W.2d 482 (Tex.Civ.App.—Beaumont, 1966, ref’d n. r. e.). It is the affirmative duty of the appellant to present a record which will show that error has been committed in order to obtain a reversal of the trial court’s judgment. Wright v. Mack Motor Truck Corp., 336 S.W.2d 831 (Tex.Civ.App.—Houston, 1960, no writ hist.); Houston Fire & Cas. Ins. Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600 (1953); Thrasher v. Hensarling, 406 S.W.2d 515 (Tex.Civ.App.—Waco, 1966, no writ hist.).

In essence the Meyer appellants contend that the trial court erred in failing to follow the procedures for the division of accreted land set out by the Supreme Court of Texas in Sharp v. Womack, 127 Tex. 357, 93 S.W.2d 712 (1936). This case held that accretions to riparian land should be apportioned to the owners of adjoining lands in proportion to river frontage of those lands as shown by the original field notes and by present frontage surveys on rivers enclosing accreted lands.

The Meyers state their contention in these words in their brief:

“The title and ownership of the accreted land lying between the Northeast Worden fence and the Brazos River became an issue because there was no proof as to what land is to be apportioned to the Worden tract and the Meyer tract as an accretion and thus part of the title to which the accretion attaches. The location of the boundary line must be extended from the 1937 adjudication (Feik vs. Meyer) in conformity with the rule for apportioning accreted lands between adjoining owners along rivers, announced in Sharp, and hereinabove referred to.”

In the absence of a complete statement of facts we cannot say that there was “no proof” as to what land is to be apportioned to the Worden and Meyer tracts as an accretion. There is no testimony in the record before us from which the true location of the boundary line determined as required by Sharp v. Womack can be ascertained. In the absence of such information we cannot determine whether the Wor-dens received more or less land than that to which they were entitled. At the trial it was their burden to produce this information. On appeal it is the burden of the Meyers to show that the Wordens have failed to carry this burden. Without a complete statement of facts we cannot sustain what is essentially a no evidence point of error. The necessary evidence may be in that portion of the statement of facts which was not brought to this court. While the pleadings and evidence demonstrate that there was a material issue as to the location of the boundary line between the parties’ property on the accreted land, the record does not raise an issue of fact as to whether or not the trial court properly determined that issue on the evidence introduced at the trial.

The Meyers also complain that the trial court abused its discretion in requiring them to pay all the costs in the trial court despite the fact that they were awarded title to a portion of the disputed property. We cannot say that the trial court abused its discretion in this respect.

Affirmed.


text:
    Robert EIKEL, Testamentary Executor of the Succession of John P. Bristow, Deceased, Appellant, v. Kenneth L. BURTON et al., Appellees.
    No. 16565.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 20, 1975.
    Rehearing Denied Dec. 18, 1975.

      Eikel & Davey, Robert Eikel, Houston, for appellant.
    Van E. McFarland, Houston, for appellee William G. King.
   COLEMAN, Chief Justice.

This suit was filed by John P. Bristow to recover $3,500.00 which he alleged he had loaned to the defendants. Bristow died pri- or to trial. Upon suggestion of such death being entered of record in open court, the trial court permitted the case to be prosecuted by Robert Eikel, the Testamentary Executor of the Succession of John P. Bris-tow, Deceased, under appointment by a court of the State of Louisiana. Judgment was entered in the trial court that the plaintiff take nothing. We reverse and remand.

It is settled that a foreign administrator cannot bring suit in the courts of this State upon a debt belonging to the estate of the decedent, with certain exceptions not applicable here. Terrell v. Crane, 55 Tex. 81 (1881).

There was no objection made in the trial court to the action of the trial judge in permitting Robert Eikel to prosecute the suit in his representative capacity. Since the error appears on the face of the record, this court will notice it on its own motion. The question is fundamental, going to the jurisdiction of the court to entertain the action as thus brought. Hicks v. Shively, 137 S.W.2d 102 (Tex.Civ.App.—Beaumont, 1940, no writ history).

This rule is supported in principle by those cases holding that fundamental error has been committed where a judgment establishes rights in a suit in which parties have no justiciable interest. See Holland v. Taylor, 153 Tex. 433, 270 S.W.2d 219 (1954).

The authority of the courts of civil appeals to take notice of unassigned error is very limited but extends to fundamental errors relating to the jurisdiction of the courts. Wagner v. Warnasch, 156 Tex. 335, 295 S.W.2d 890 (1956).

In Faulkner v. Reed, 241 S.W. 1002 (Tex.Com.App., Sec. B, 1922, holding approved), the court stated:

“No judgment can be rendered against an estate unless it has a legal representative before the court. An administrator, appointed by the courts of Ohio, could not, by virtue of said appointment sue or be sued in the courts of Texas, or in any way act as legal representative of said estate in Texas. An administrator is the agent solely of the court appointing him, clothed with authority to administer only such assets as are within the jurisdiction of the court making such appointment. In other words, an administrator has no extraterritorial authority . . .”

Appellant Eikel asserts that while jurisdiction of subject matter cannot be conferred where none exists, jurisdiction over the person can be conferred by consent or waiver, citing Federal Underwriters Ex change v. Pugh, 141 Tex. 539, 174 S.W.2d 598 (1943).

The question is whether the trial court exceeded its authority in rendering judgment against Eikel in his representative capacity. Rule 151, Texas Rules of Civil Procedure, provides that if the plaintiff dies, the heirs, or the administrator or executor of such decedent may appear and upon suggestion of such death being entered of record in open court, may be made plaintiff, and the suit shall proceed in his or their name. It further provides that if no such appearance and suggestion be made at the first term of the court after the death of the plaintiff a scire facias for the heirs or the administrator or executor of such decedent should issue requiring him to appear and prosecute such suit. If after service of such scire facias, such heir, administrator or executor fails to enter an appearance within the time provided, the defendant may have the suit discontinued.

The record shows that the procedure provided by these rules has not been followed. The administrator or executor referred to in the rule must be an administrator or executor appointed by the courts of Texas. This requirement is based upon the principle that one state should not have extra-territorial jurisdiction over assets of a deceased person; otherwise these assets might be exhausted or withdrawn to the detriment of domestic creditors, who have the right to have them administered under the laws of their own state, and to whose jurisdiction they are naturally subjected. Terrell v. Crane, 55 Tex. 81 (1881).

Because of the interest of the State of Texas in providing its citizens protection against the possibility of having to litigate their claims in a foreign forum, the parties cannot confer jurisdiction over the estate of John P. Bristow by agreement or waiver when no person is authorized to represent said estate. Since it appears on the face of the record that Eikel is not authorized to prosecute the suit on behalf of the estate, the failure of the defendants to object in the form required by Rule 93, Texas Rules of Civil Procedure, requiring a sworn plea to attack the right of the plaintiff to recover in the capacity in which he sued, is not applicable in this proceeding. Under the facts of this case the court was not authorized to proceed to trial. Rule 151, supra.

Eikel cites the case of Blackman v. Green, 17 Tex. 322 (1856), as authority for the proposition that the failure of the opposite party to point out in the trial court the lack of capacity of a foreign executor to maintain a suit would result in waiver of the error. While the reporter’s notes in that case indicate that the action was prosecuted by a foreign executor, this fact was not referred to in the opinion of the court.

In Meredith v. Sharp, 152 Tex. 437, 259 S.W.2d 172 (1953), the trial court had denied a writ of mandamus and the court of civil appeals affirmed. The Supreme Court found that the petitioner had no interest, financially or otherwise, which would authorize him to maintain the suit. The Court stated that the trial court should have dismissed the suit rather than deny the relief sought. We consider, however, that the facts of this case require that the judgment of the trial court be reversed and that the cause be remanded for trial. Rule 150, Texas Rules of Civil Procedure, provides that where the cause of action is one which survives, no suit shall abate because of the death of any party thereto before the verdict or decision of the court is rendered, but that such suit may proceed to judgment.

Reversed and remanded.


author: PEDEN, Justice.

text:
    L. V. GLOVER et al., Appellants, v. Millard E. LANDES, Temporary Administrator with Will Annexed of the Estate of Verne B. Glover, and as Independent Executor of the Estate of Frances Glover, Deceased, Appellee.
    No. 16561.
    Court of Civil Appeals of Texas, Houston (1st Dist.).

      Nov. 20, 1975.
    Rehearing Denied Dec. 18, 1975.

      Les Fleming, Houston, for appellants.
    Kenneth L. Smith, Michael J. Kennedy, Houston, for appellee.
   PEDEN, Justice.

Contestants appeal from a district court judgment admitting to probate the will of Verne B. Glover, deceased.

Glover and his wife, Frances, had in 1942 executed a joint reciprocal will by which the survivor of them was to receive all the estate owned by either or both of them. The will made no provision for disposition of the estate of the survivor.

Verne B. Glover died on June 21, 1971, and his portion of the will was admitted to probate in a Harris County probate court on November 16, 1971. Millard E. Landes was appointed temporary administrator with will annexed of the estate of Verne B. Glover, deceased. L. V. Glover and W. H. Glover, sons of Verne B. Glover by a previous marriage, petitioned the district court to set aside the order admitting their father’s will to probate and now appeal from an adverse judgment in the district court. The trial judge made findings of fact and conclusions of law. While this cause was pending in the district court, Mrs. Frances Glover died. Millard E. Landes filed a suggestion of her death, and the district judge entered an order substituting for Frances Glover her independent executor.

The appellants listed forty points of error in their brief. We will respond to those which they briefed or argued. They say their fundamental issue is that the trial court erred in holding that Millard E. Landes, as independent executor of the estate of Frances Glover, represented her estate and bound all her devisees and in failing to hold that the beneficiaries named in the will of Frances Glover are indispensable parties to this suit. Appellants cite Jennings v. Srp, 521 S.W.2d 326 (Tex.Civ.App. 1975, no writ) in support of their position, but that case can be distinguished on the facts. In Jennings v. Srp the court held that in an action to contest a will under the provisions of Section 93, Texas Probate Code (Art. 5534, Vernon’s Texas Civil Statutes), all persons named in the will being contested and all heirs at law of the decedent are indispensable parties. In our case the appellants are not complaining about the failure to join the devisees named in the will that is being contested; the appellants are arguing that the devisees of a now-deceased proponent are indispensable parties.

The proponent still has the burden of proof when an appeal is taken to a district court in a will contest.

Rule 151, Texas Rules of Civil Procedure, provides: “If the plaintiff dies, the heirs, or the administrator or executor of such decedent may appear and upon suggestion of such death being entered of record in open court, may be made plaintiff, and the suit shall proceed in his or their name . . ."

The legal representative of the estate is the proper party to be substituted in revival of any action wherein the assets of the estate are to be recovered for its benefit. 1 Am.Jur.2d 135, Abatement, Survival, and Revival, § 121.

Executors qualified in probate proceedings in a Texas court have broad statutory authority to bring all actions necessary to collect, to preserve and protect the estate, and the heirs or devisees need not be, and ordinarily are not, joined. Absent circumstances warranting the intervention of equity, his is the prior and exclusive right to sue. 1 McDonald, Texas Civil Practice (1965) 260, Parties § 310, citing Art. 1981, Vernon’s Texas Civil Statutes, and Texas Probate Code § 37. See also Probate Code § 233. In our case there is no contention that the executor has failed to act, that he has an interest adverse to any of the devi-sees or that he is proceeding in behalf of persons having adverse interests.

Our Supreme Court held in Ladehoff v. Ladehoff, 436 S.W.2d 334 (1968):

An application for probate is a proceeding in rem. Section 2(e), Texas Probate Code (1956); Masterson v. Harris, 107 Tex. 73, 174 S.W. 570 (1915). In such a proceeding, the power of the probate court is limited to determining whether the proposed document is the last will of the deceased. Huston v. Cole, 139 Tex. 150, 162 S.W.2d 404, 406 (1942). An in rem judgment, such as the order which admitted the will in question to probate, is binding upon the whole world and specifically upon persons who have rights or interest in the subject matter, and this is so whether those persons were or were not personally served. McCamant v. Roberts, 66 Tex. 260, 1 S.W. 260 (1886); Gardner v. Union Bank & Trust Co., 159 S.W.2d 932 (Tex.Civ.App.1942, writ ref.); 50 C.J.S. Judgments § 910c(3).

We hold that the devisees under the will of Mrs. Frances Glover, proponent of the contested will of Verne Glover, are not indispensable parties to the contest of Verne Glover’s will. Rule 39, Texas R.C.P.

In their first point of error the appellants say “The trial court erred in making finding of fact No. 8 that ‘Verne Burrows Glover did not revoke this will from the time he executed his will until the date of his death.’ This will was revoked in its entirety because of the execution of another will by the wife alone, without the knowledge of her husband, prior to the death of her husband.”

There are several reasons why we overrule this point. The Texas Probate Code, § 63, provides:

No will in writing, and no clause thereof or devise therein, shall be revoked, except by a subsequent will, codicil, or declaration in writing, executed with like formalities, or by the testator destroying or canceling the same, or causing it to be done in his presence.

Further, the only evidence that Mrs. Glover executed another will during her husband’s lifetime came from her deposition testimony. In it she admitted that she had “a long time ago” had a will by which her property went to her heirs. She did not discuss it with her husband. She said she tore it up in August, 1971 and made a new will to add some more heirs. There is no other evidence to show the date, validity or contents of that will. The trial court was not obliged to believe from the evidence and did not find either that such will was valid, that it was executed later than the joint will or that it was inconsistent with the joint will. It may have only provided for the disposition of her estate in the event she survived Verne Glover. In any event it could not amount to a revocation of Verne Glover’s will.

The appellants’ eighth point is:
The trial court erred in finding as Conclusion of Law No. 5 that ‘the joint will does not express or imply any contract between the two testators; furthermore, there are no conditions either expressed or implied restricting either testator from modifying or revoking the April 27, A.D., 1942, will.’ There was an implied or inferred condition that if either party executed another will, such action would nullify the will in question, because the basic condition and the foundation of the will in question is that the survivor will receive all of the estate of the one who dies first. The execution of another will destroys this foundation and, in turn, destroys the will in question.

We overrule this point. Since the record does not show that Mrs. Glover executed a later, valid will inconsistent with the joint will, we do not reach the question of its effect on the joint will.

Appellants argue under their 27th and 39th points that the trial court erred in failing to make their 30th requested finding of fact and their 13th requested conclusion of law, each of which stated: “Frances Glover, because of her repudiation of the agreement with her husband reflected in the 1942 will, is estopped as a matter of law from receiving any of the benefits accorded to her under the said 1942 will.”

Appellants argue under these points that Mrs. Glover was estopped as a matter of law to claim the benefits of the 1942 (joint) will because she prepared a new will and concealed that fact from her husband.

We find no merit in these points for the reason already given: the other will was not shown to be valid, to have been executed subsequent to the 1942 joint will or to have been inconsistent with its provisions.

Affirmed.