author: PHILLIPS, Judge.

text:
    Harold D. CARAWAY, Appellant, v. The STATE of Texas, Appellee.
    No. 54393.
    Court of Criminal Appeals of Texas.
    May 18, 1977.

      Patrick A. Lanius, Huntsville, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of murder with malice under our former penal code upon a plea of not guilty. The jury assessed punishment at life imprisonment.

Co-defendant Douglas Arthur Bates testified on rebuttal to the events surrounding the killing as follows: In November 1970 appellant asked Bates to help him with the murder of Horace Knox for $500.00. Appellant then telephoned a woman named Mildred and Bates spoke to her about the murder. A week prior to the murder appellant and Bates made a trip in the vicinity of Lovelady, but did not go to Mr. Knox’s house. At that time appellant had a hand-drawn map.

On December 23, 1970, appellant picked Bates up shortly before 12:00 and they proceeded to Bates’ trailer where they found Tommy Bell, Sandra Franklin and Bruce Pershall. The five left Houston in Bates’ Cadillac and drove toward Dallas on the interstate highway. They left the highway at Crockett where they stole a white Mustang and a .30-30 rifle.

From Crockett they drove to Lovelady and to Mr. Knox’s house. Bates testified that he drove in the Mustang with appellant while the others drove in the Cadillac. Pershall, Bates and appellant went up to the house. When Mr. Knox came to the door with a .22 single shot in his hand, the three men tackled him. Appellant asked the man if he was Horace Knox and when the man responded affirmatively the appellant began beating him with the .22 rifle.

Bates found a shotgun and Pershall found some shells in Knox’s home. Bates admitted that he shot the man once with the shotgun in the waistline. He testified that the three of them wiped any fingerprints and left with the shotgun. Later they picked Bell up on the side of the road. It was Bates’ testimony that the murder occurred at approximately 3:30 in the morning.

On cross examination Bates was confronted with prior inconsistent statements in regard to this case. He admitted that he had earlier attempted to blame Tommy Bell for the murder because Bell had previously informed on Bates for the burglary of a doctor’s office.

This testimony was corroborated earlier by Tommy Bell, who testified that on the night of the murder he was at Bates mobile home “fixing up speed” and at approximately 11:00 o’clock he, Bates, appellant, Sandra Franklin and Bruce Pershall drove in Bates’ automobile to Crockett. In Crockett appellant stole a .30-30 rifle from a truck and later Bates and appellant stole a white Mustang. Bell testified that Bates drove the Mustang with appellant and that Pershall and Franklin rode in the Cadillac with him.

They stopped at a farm house and Bates and appellant went to the front door of the house and entered. Approximately 10 or 15 minutes later Bell heard a shot, at which time he got scared, made a U-turn and drove off. He testified that he later had a flat tire and pulled off on the shoulder of the road somewhere past Huntsville. After hitchhiking for 30 minutes or an hour Bates picked him up in the Mustang. Bell testified that at this time it was approximately 3:30 or 3:45. He further testified that he did not see a shotgun or any kind of weapon in the car, nor did any of his companions mention what had happened in the farm house that night. Bell admitted taking “speed” before going on the trip that night and testified that he took drugs, mostly amphetamines.

In addition to the testimony of co-defendant Bates, Bell, the medical examiner and the investigating officer, the appellant presented several alibi witnesses. Appellant’s grandmother-in-law, mother-in-law, Winnie Davis, and his wife all testified to appellant’s presence at a Christmas party until 11:45 or 12:00 p. m. the evening of December 23, 1970. Appellant’s mother-in-law testified that he was living with her at the time and that they all went to bed at approximately 11:15. She further testified that she saw appellant the following morning at 6:15.

Appellant’s wife testified that she and appellant went to bed at approximately 12:30, but got up at approximately 1:00 o’clock to call appellant’s mother. They went back to bed at about 1:15 and talked to one another until about 1:30. At approximately 3:00 appellant’s wife was awakened by her baby and she testified that at the time she noticed that appellant was still in bed.

In his second ground of error appellant assigns error to the trial court’s failure to instruct a verdict of acquittal in that there was insufficient evidence to corroborate testimony of the accomplice witness as required by Art. 38.14, V.A.C.C.P. The application of Art. 38.14 requires that the testimony of the accomplice witness be eliminated from consideration while the testimony of the other witnesses is examined for evidence of an incriminating nature tending to connect the accused with the commission of the offense. Moore v. State, Tex.Cr.App., 521 S.W.2d 263.

Appellant contends that the only testimony other than that offered by Bates which connected him to the offense was that given by Bell, also an accomplice witness. If that contention is correct, this conviction must be reversed, because the testimony of one accomplice witness cannot be used to corroborate that of another. See Chapman v. State, Tex.Cr.App., 470 S.W.2d 656.

Douglas Bates was an accomplice witness as a matter of law. The jury was instructed that Bates was an accomplice witness; however, they were given no instruction concerning Bell’s status. A careful examination of appellant’s brief and the record before us does not reflect that appellant ever requested that the jury be so charged. Ordinarily when there is doubt whether a witness is an accomplice witness, it is sufficient if that fact issue is submitted to the jury even though the evidence seems to preponderate in favor of the fact that such a witness is an accomplice witness as a matter of law. Colunga v. State, Tex.Cr.App., 527 S.W.2d 285. However, since the issue was not submitted to the jury in the instant case, it is necessary for us to determine if Bell is an accomplice witness as a matter of law.

As we noted in Singletary v. State, Tex.Cr.App., 509 S.W.2d 572:

“An accomplice witness has been described as a person, who, either as a principal, accomplice, or accessory, was connected with the crime by unlawful act or omission on his part, transpiring either before, at the time of, or after the commission of the offense, and whether or not he was present and participated in the crime.”

Appellant argues that because Bell admitted he was a party to the theft of the automobile and rifle shortly before the murder he should be considered an accomplice witness to the instant offense. Appellant notes that Bell was driving Bates’ car when he saw Bates and appellant enter the farm house. He argues that from the two thefts just committed it would have been reasonable for Bell to assume Bates and appellant were about to commit a third crime when they went into the farm house. From these facts appellant concludes that some complicity still existed on Bell’s part which necessitates corroboration of his testimony as an accomplice. Although appellant’s argument is compelling, we do not agree.

The mere fact that a witness has complicity with an accused in the commission of other offenses does not make his testimony that of an accomplice witness for the offense for which the accused is on trial if there is no showing of his complicity in that offense. Easter v. State, Tex.Cr.App., 536 S.W.2d 223. The record in the instant case does not reflect any affirmative act on Bell’s part to assist in Knox’s murder. See Chappell v. State, Tex.Cr.App., 519 S.W.2d 453. Appellant made no showing that Bell participated in planning or promoting the offense. See and compare Cross v. State, Tex.Cr.App., 550 S.W.2d 61 (decided April 20,1977). Even if Bell had been told of the killing later that evening when he was given a ride by appellant and Bates, a witness is not deemed an accomplice witness merely because he knew of the crime but failed to disclose it or even concealed it. Easter, supra. The fact that Bell was present outside the farm house at the time of the shooting is also not controlling; the fact that the witness was present when the crime was committed does not compel the conclusion that he was an accomplice witness. See Quintanilla v. State, Tex.Cr.App., 501 S.W.2d 329; Easter, supra; Colunga, supra.

Having found Bell was not an accomplice witness as a matter of law, his testimony is a proper corroboration of the accomplice witness Bates. Appellant’s second ground of error is overruled.

Next appellant contends he was denied due process of law under the Fifth and Fourteenth Amendments when gruesome photographs were “unnecessarily introduced merely to prejudice the defendant and inflame the minds of the jury.” Appellant recognizes the rule of Martin v. State, Tex.Cr.App., 475 S.W.2d 265, and its progeny which permit the admission of photographs of the deceased if a verbal description of the scene would be admissible. However, appellant stresses that in those cases evidence of guilt was overwhelming and argues that in the instant case the evidence is very weak, thus causing the photographs to have a prejudicial effect on the jury.

Sheriff Monk testified the first thing he saw upon entering the house was “Mr. Knox’s body lying in the front room face up near a couch and he had been badly beaten and shot.” At that point the State introduced a photograph which Monk said accurately represented the scene except that the deceased’s pockets had been turned out in order to remove his personal property. Appellant’s objection to the photograph as prejudicial was overruled. Monk identified the second complained-of photograph as the other side of the room in which Knox was found. Appellant objected to its admission as the third photograph of the deceased and of no value except to inflame the jury.

From the record before us it appears that nine photographs were admitted into evidence showing the physical layout of the living room and the exterior of the house, different parts of a firearm found throughout the room, the deceased’s glasses and his body as it was left at the scene. Appellant objects to those photographs which show decedent’s body. From the description of these photographs given at the trial, they were properly admissible as pertinent to decedent’s injuries and a description of the place where the offense was committed. Vasquez v. State, Tex.Cr.App., 532 S.W.2d 338. Furthermore, without the photographs before us for review, we cannot conclude that the photographs lacked probative value and served only to prejudice and inflame the jury.

Appellant complains in his fourth ground of error that he was denied due process of law in violation of the First and Fourteenth Amendments because the courtroom had the appearance of an armed camp. In his brief appellant asserts that during the trial several individuals present were armed with pistols: the trial judge, the district attorney, the assistant district attorney, the sheriff, the deputy sheriff, the former deputy sheriff and a Texas Ranger. Before the voir dire of the jury panel, the trial judge informed counsel in chambers and with a court reporter present that he had received information that the joint defendants intended to make a break at the courthouse and possibly take the district attorney with them as a hostage. As a result of these threats, the trial judge stated that he requested the presence of a Texas Ranger, the former deputy sheriff, and either the sheriff or deputy sheriff. The trial judge stated for purposes of the record that both the Texas Ranger and the former deputy sheriff were wearing “street clothes” and no weapons would be displayed by them.

The trial judge additionally informed counsel that he intended to keep a loaded gun in the drawer of his bench and that the State’s attorneys were also armed. At this point the trial judge stated his intention to search all male spectators entering the courtroom and the purses of all female spectators. He further stated that these searches would be “outside the vision and without the knowledge of the jury at any time.”

The record does not reflect that the jury was aware of these security procedures and appellant admits that there was no showing that the jurors were in fact influenced by the security measures outlined before trial. However, appellant urges that the error was so egregious that no showing of actual prejudice is required. We do not agree.

In Moore v. State, Tex.Cr.App., 535 S.W.2d 357, we stressed that it is the trial court’s responsibility, subject to close appellate scrutiny, to cause the record to reflect why a defendant must appear before a jury in handcuffs, since such actions infringe his constitutional presumption of innocence. The decision in Moore stressed that the error involved concerns the effect of such actions on the jury and observed:

“No justification at all was necessary for handcuffing the appellant during trips between the jail and the courthouse, for the record does not reflect that any jurors would have had occasion to see him during such trips.”

The case at bar is more closely analogous to the second situation where there is no showing that the jury was even aware such additional precautions were being taken and consequently there is no showing of harm.

Similarly in Kimble v. State, Tex.Cr.App., 537 S.W.2d 254, there was no showing of harm or prejudice when a co-defendant was exposed to the jury in jail clothes. In light of the threats conveyed in this case and the fact that, except for the sheriff or his deputy, all the law enforcement officers present were in plain clothes, and because all searching of spectators was done outside the presence of the jury, we find the security measures taken in this case to be justified and reasonable. See Chappell v. State, supra.

In his first ground of error appellant complains he was denied equal protection and due process of the law in violation of the Fourteenth Amendment because he “could not post bond prior to trial” and received the maximum sentence but was not given credit for his pretrial jail time. It is appellant’s position that denial of pretrial jail time credit unfairly extended his parole eligibility date and thus should be controlled by the rationale of Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and Hart v. Henderson, 449 F.2d 183 (5th Cir. 1971). We agree.

In Williams, supra, the defendant was assessed the maximum sentence of imprisonment in addition to a fine. Defendant’s indigency prevented him from paying the fine and the Supreme Court held his imprisonment for non-payment was invalid. Hart, supra, a habeas corpus writ, similarly held that the inability of an indigent criminal defendant to make bond should not extend his imprisonment beyond the statutory maximum, and the cause was remanded for an evidentiary hearing on indigency.

Art. 42.03, V.A.C.C.P., in effect at the time appellant was sentenced, allowed the trial judge the discretion of crediting a defendant with the time he spent in jail prior to trial. In the case at bar appellant was assessed the maximum punishment of life imprisonment. Appellant argues that although a “life” sentence appears open ended and appears to be controlled solely by the length of appellant’s life, a prisoner serving such a sentence is eligible for parole consideration when he has accumulated credit for 20 years of his sentence. Art. 42.12, Sec. 15(a), V.A.C.C.P.

This Court has previously considered the collateral legal consequences of a felony conviction upon a life sentence. See Ex parte Langston, 510 S.W.2d 603 and 511 S.W.2d 936. The rationale of those opinions gives appellant standing to challenge the pretrial jail time credit on direct appeal.

Although there are no Texas cases referring to the exact issue appellant raises by this ground of error, several federal decisions have addressed the general issue involved. Generally there is no federal constitutional right to credit for time served prior to sentence. Jackson v. State of Alabama, 530 F.2d 1231 (5th Cir. 1976). However, a criminal defendant who is confined before sentencing because his indigency prevents him from making bond is excepted from the general rule if he is sentenced to the statutory maximum for his particular offense. Martin v. State of Florida, 533 F.2d 270 (5th Cir. 1976).

Here appellant received a sentence of life imprisonment which was the maximum sentence for murder with malice. The record before us reflects appellant’s indigency. Thus it appears that appellant has satisfied the two criteria necessary to compel the trial court to award him pretrial jail time credit even though at the time appellant was sentenced the trial judge had complete discretion to grant or deny credit.

Accordingly, upon receiving the mandate in this cause, the trial judge is instructed to credit appellant for time served prior to sentence.

The judgment is affirmed.

      . Art. 38.14, V.A.C.C.P., provides:
      “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

      . As amended August 27, 1973, Art. 42.03, V.A. C.C.P., now makes it mandatory to give a defendant credit for his pretrial custody. See Harrelson v. State, Tex.Cr.App., 511 S.W.2d 957.

      . Appellant filed a pauper’s oath before trial stating he was in custody because of his inability to make bond and was wholly destitute of means to hire counsel. The trial court then appointed counsel for appellant. The record also reflects appellant’s sworn pauper’s affidavit claiming his inability to pay court costs.


source: Caselaw Access Project

author: REYNOLDS, Justice.

license: Public Domain

text:
    Clayton SANDERS and Forshage Trucking Company, Appellants, v. Pedro DAVILA et al., Appellees.
    No. 8718.
    Court of Civil Appeals of Texas, Amarillo.
    Feb. 22, 1977.
    Rehearing Denied April 29, 1977.
    Clifford, Sims & Kidd, Wm. A. Clifford and Richard Hubbert, Lubbock, for appellants.

      Edwards & Associates, James R. Edwards, Garner, Vickers, Purdom & Nelson, John E. Vickers, Lubbock, for appellees.
   REYNOLDS, Justice.

In this action arising from the collision of vehicles, it is questioned whether a defendant is entitled to invoke the doctrine of imminent peril. We hold that he is not and that the imminent peril instruction given in this cause on behalf of a defendant was harmful. Reversed and remanded.

An abbreviated statement suffices. While proceeding south on U.S. Highway 87 a few miles north of Lubbock, Texas, Clayton Sanders allegedly lost control óf a For-shage Trucking Company truck tractor and trailer he was operating. To avoid a collision with Sanders’ vehicle, Terry David McAfee, who was following Sanders in the southbound lane and driving a truck owned by his employer, Leaseway-Southwest, Inc., steered his vehicle to the left of Sanders. McAfee’s vehicle veered across the median and into the right-hand lane of northbound traffic where his vehicle collided head-on with a northbound truck driven by Pedro Davila and in which his wife, Lena Davila, was a passenger. As plaintiffs, Pedro and Lena Davila brought this suit to recover from defendants Terry David McAfee, Leaseway-Southwest, Inc., Clayton Sanders and Forshage Trucking Company, their monetary damages for both personal injuries and property damage sustained in the • collision.

In the jury charge, after the usual definitions and instructions on unavoidable accident and on sudden emergency as it applied to defendants Clayton Sanders and Terry David McAfee and immediately before the special issues, the court gave, on behalf of defendant McAfee and over the objections of defendants Sanders and Forshage Trucking Company, this instruction:

A person is in a position of imminent peril when it reasonably appears to such person that he has been put in a position of danger, by the acts of another party, which calls for immediate action by such person without time for deliberation, and such appearance of danger caused such person to be so frightened as to be unable to use ordinary care for his own safety, and such appearance of danger was not proximately caused by any negligence on the part of such person. If you find that Terry David McAfee was in such a position, then all of your answers to the negligence issues inquired about concerning his conduct in this Charge should be answered in the negative.
If the negligent conduct of Terry David McAfee, if any, concurred in bringing about the position of peril, then he cannot avail himself of the Imminent Peril Doctrine.

The special issues submitted did not embrace the elements of imminent peril.

By its answers to the special issues, the jury: failed to find that Pedro Davila was negligent in the three matters inquired about; found that Lena Davila was negligent in one respect, but failed to find the negligence was a proximate cause of the occurrence; failed to find that defendant McAfee was negligent in any of his acts or omissions inquired about; found that three of the four acts or omissions of which defendant Sanders was accused were negligence proximately causing the occurrence; and found that Alex Forshage negligently entrusted the vehicle to Sanders, a known reckless and incompetent driver, which was a proximate cause of the occurrence. The jury found the percentage of negligence that caused the occurrence attributable to each actor as follows:

Terry David McAfee 10%
Clayton Sanders 50%
Pedro Davila _0%
Alex Forshage 40%
Lena Davila 0%

The jury determined that the aggregate amount of the Davila’s damages for personal injuries and property damage was $81,-645.24.

Disregarding the finding that ten per cent (10%) of the negligence causing the occurrence was attributable to defendant McAfee, the trial court rendered judgment, decreeing that Pedro Davila and Lena Davi-la recover their total damages of $81,645.24 from Clayton Sanders and Forshage Trucking Company jointly and severally. Defendants Sanders and Forshage Trucking Company have appealed. Defendants McAfee and Leaseway-Southwest, Inc., have joined the plaintiffs, Pedro Davila and Lena Davila, as appellees.

In the fourteenth of their sixteen points of error, Sanders and Forshage Trucking Company present the contention that the giving of the imminent peril instruction on behalf of defendant McAfee was reversible error. We agree.

The doctrine of imminent peril had its inception in Texas when the Supreme Court announced in International & G. N. R. Co. v. Neff, 87 Tex. 303, 28 S.W. 283 (1894), that if a non-negligent plaintiff is placed in what appears to him to be a perilous position by the negligence of a defendant, the plaintiff’s subsequent acts to extricate himself, whether prudent or imprudent, will not bar his recovery. At that time, a plaintiff’s contributory negligence, unless excused under some doctrine such as “discovered peril,” barred any recovery. The thrust of the Neff decision was not to excuse contributory negligence, but to deny that there was any negligence on the part of a plaintiff in attempting to escape the imminent peril created by a defendant’s negligent conduct. Consequently, and as Professor Thode emphasizes, the doctrine of imminent peril is available only to one in the legal position of a plaintiff. Thode, Imminent Peril and Emergency in Texas, 40 Tex.L.Rev. 441, 445-6, 453 (1962). Although the Supreme Court established the doctrine to deny to a defendant the protection of a plaintiff’s contributory negligence occasioned by the defendant’s negligent conduct, it has not abrogated the doctrine, so far as we have determined, even though Texas has adopted a modified standard of comparative negligence. See Vernon’s Ann.Civ.St. art. 2212(a) (Supp.1977).

In tracing the historical development of the doctrine of imminent peril, Professor Thode illustrates that it, although available only to one in the legal position of a plaintiff, often has been confused with the related, but clearly distinct, doctrine of sudden emergency, which is available to any party in determining whether he acted as a reasonable person in an emergency not created by his own negligence. 40 Tex.L.Rev. 451, et seq. Accord, Del Bosque v. Heitman Bering-Cortes Company, 474 S.W.2d 450, 453 (Tex.1971), where former Chief Justice Calvert, after quoting passages intermingling the doctrines of sudden emergency and imminent peril, wrote:

. Such expressions are not intended to mean, and do not mean, that a person will be relieved of the legal consequences of unreasonable and imprudent conduct when confronted with a sudden emergency; they mean only that the fact finder, judge or jury as the case may be, may conclude that conduct which in other circumstances would be unreasonable or imprudent is not so in emergency situations. In this respect the doctrine of “sudden emergency” would seem to differ from the doctrine of “imminent peril.” A person is not legally accountable for imprudent conduct resulting in injury to himself when such conduct results from a state of terror reasonably springing from an imminent peril created by the negligent conduct of the defendant.

In his 1962 article, Professor Thode demonstrated that the doctrine of sudden emergency does not involve an ultimate issue and suggested that it should be submitted as an instruction in lieu of the customary special issue. 40 Tex.L.Rev. 461, et seq. That suggestion attained fruition in 1971 when the Supreme Court decreed in Yarborough v. Berner, 467 S.W.2d 188 (Tex.1971), that “sudden emergency” would be the subject of an instruction rather than a special issue. However, Professor Thode evinced that “imminent peril” is an ultimate issue because “it completely excuses the plaintiff’s conduct while in a terrorized condition,” and that the plaintiff, upon adducing proof on all the elements, is entitled to submission of special issues. 40 Tex.L.Rev. 469, et seq.

Here, defendants McAfee and Leaseway-Southwest, Inc., contend that McAfee’s conduct leading to the collision was caused by the acts of defendant Sanders. There is no contention that the plaintiffs, either Pedro Davila or Lena Davila, did anything to contribute to the situation in which McAfee found himself. Therefore, under both the authorities and the facts, defendant McAfee was entitled to an instruction on sudden emergency, but he was not entitled to invoke, and there is no basis for the instruction allowing him to use, the doctrine of imminent peril to excuse his conduct. Thode, Imminent Peril and Emergency in Texas, 40 Tex.L.Rev. 441, 452 (1962); Del Bosque v. Heitman Bering-Cortes Company, supra, 474 S.W.2d at 453.

Not only was the giving of the instruction error, but the instruction itself was erroneous in one particular. In the final sentence of the first paragraph the jury, if it found defendant McAfee was in a position of imminent peril, was instructed that “. . . all of your answers to the negligence issues inquired about concerning his conduct in this charge should be answered in the negative.” (Emphasis supplied.) By definition, the doctrine of imminent peril does not render both pre- and post-imminent peril conduct non-negligent; it only insulates plaintiff from negligent conduct in attempting to escape the peril created by the defendant’s negligence.

Given the instruction, the jury failed to find that defendant McAfee was negligent in any of the respects inquired about, but did find that ten per cent (10%) of the negligence that caused the occurrence was attributable to McAfee. Notwithstanding that the jury’s answers to specific liability issues of negligence and proximate cause may control over its general findings of negligence and causation within the apportionment issue submitted pursuant to the modified comparative negligence statute, V.A.C.S. art. 2212(a) (Supp. 1977) — see, e.g., Ruiz v. Flexonics, 517 S.W.2d 853 (Tex.Civ.App., Corpus Christi 1974, writ ref’d n.r.e.) —the negligence-causation apportionment finding lends credence to the conclusion that there was harm in giving the erroneous instruction.

Accordingly and to the extent that the submission of the imminent peril instruction is challenged, the fourteenth point of error is sustained. The remainder of the points have been considered and, measuring the specific complaints against the trial posture of the case, we do not find other reversible error. We pretermit a discussion of those points because it is unlikely that they will recur in the same context in the event of further proceedings.

The judgment is reversed and the cause is remanded.

ON MOTION FOR REHEARING

Contrary to the view of our opinion expressed by appellees in their motion for rehearing, we did not hold that the submission of imminent peril by instruction instead of by special issue was error. Our holding was, and is, that, because the doctrine of imminent peril is available only to one in the legal position of a plaintiff, the doctrine could not be invoked by defendant McAfee to excuse his conduct and, thus, it was error by the court to instruct that if the jury found that McAfee was in a position of imminent peril, then all answers to the negligence issues concerning his conduct should be in the negative.

The opinion is not to be taken as expressing how the doctrine of imminent peril should be submitted in a proper case. Our statement that in 1962 Professor Thode evinced that imminent peril is an ultimate issue concerning the conduct of a plaintiff who, upon proof of all the elements, is entitled to submission of special issues, was made within the framework of tracing the historical development of the doctrine. In this connection, perhaps we also should have noted, as we now note, that the revision of Rule 277, Texas Rules of Civil Procedure, effective 1 September 1973, affords the trial court wide discretion in submitting such special issues and instructions that shall be proper to enable the jury to render a verdict in a given case.

Raised for the first time in their motion for rehearing is appellees’ contention that Sanders and Forshage procedurally waived in the trial court their fourteenth point of error which we sustained, and that, therefore, we should not have entertained it. The procedural facts upon which the point was based were clearly set forth in appellants’ brief and, unless challenged by appel-lees, were authorized to be accepted as correct. Rule 419, T.R.C.P. Appellees did not challenge the vitality of the point on submission; rather, they joined issue on the merit of the point, which was fully briefed and orally argued on submission, without suggesting in any manner that it should not be considered. The point was presented as a viable one to be sustained or overruled.

It is only after we have found the point worthy that appellees first contend that we should not have entertained it. Under these circumstances, it is held that appellate adjudication of an appellant’s point of error is justified and that an appel-lee’s objection to its consideration comes too late for attention when made for the first time in appellee’s motion for rehearing. Southern Gas & Gasoline Engine Co. v. Adams & Peters, 169 S.W. 1143, 1149-50 (Tex.Civ.App., San Antonio 1914, writ ref’d); Texas Employers’ Ins. Ass’n. v. Downing, 218 S.W. 112, 122 (Tex.Civ.App., Amarillo 1920, writ ref’d); Harris v. Cleveland, 294 S.W.2d 235, 242-43 (Tex.Civ.App., 1956, writ dism’d); W. T. Burton Company v. Keown Contracting Company, 353 S.W.2d 909, 914 (Tex.Civ.App., Beaumont 1961, writ ref’d n.r.e.); Thomas v. Morrison, 537 S.W.2d 274, 279-81 (Tex.Civ.App., El Paso 1976, writ ref’d n.r.e.).

Appellees’ motion for rehearing is overruled.


author: PRESLAR, Chief Justice.

text:
    Lucy SKEEN, Appellant, v. The STATE of Texas et al., Appellees.
    No. 6549.
    Court of Civil Appeals of Texas, El Paso.
    March 16, 1977.
    Rehearing Denied April 13, 1977.

      Joseph Connally, Royal Caswell, Odessa, for appellant.
    John L. Hill, Atty. Gen., Joe D. Jarrard, Asst. Atty. Gen., David M. Kendall, First Asst. Atty. Gen., Watson C. Arnold, C. W. Pearcy, Asst. Atty. Gen., Austin, for appel-lees.
   OPINION

PRESLAR, Chief Justice.

This is an inverse condemnation case brought by the Appellant alleging water damage to her property caused by elevation of a highway. Based on a jury verdict, judgment was entered for the State and the State Highway Department. We are of the opinion that the judgment should be reversed.

Suit was originally by Appellant and her husband, now deceased. The Appellant alleges that they had purchased acreage and built a home adjacent to Highway 80, and that subsequent to their purchase, the Appellee elevated the highway without providing for adequate drainage, thereby diverting flood waters upon their property by two floods, one in 1968 and one in 1970. The case was submitted to the jury on a series of thirteen special issues, all of which were answered favorably to the Appellant-Plaintiff, except one, Special Issue No. 9.

Both parties filed motions for judgment on the verdict, and the trial Court found in favor of the Appellee-Defendants. Appellant brings this appeal on the sole point of error that the trial Court erred in not granting her motion for judgment on the verdict.

Appellees have filed their motion in this Court urging that we dismiss the appeal because of the failure of the Appellant to file a motion for new trial. We deny the motion to dismiss for the reason that Rule 324, Tex.R.Civ.P., contains an exception to the Rule that a motion for new trial is a prerequisite to appeal from a case tried to a jury. That Rule provides that neither a motion for a new trial nor an assignment therein shall be a prerequisite to the right to complain on appeal of the action of the Court in “overruling a motion for judgment on the verdict made by the party who becomes appellant.”

Both parties having moved for a judgment on the verdict, the matters which can be reviewed by this Court are limited. The record reflects that the Court accepted the verdict without objection from either party and ordered it filed. We conclude that the verdict requires a judgment for the Plaintiff for damages under the provisions of Article 1, Sec. 17, of the Texas Constitution.

In part, Article 1, Sec. 17, provides:

“Sec. 17. No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made * *

The damage here complained of was clearly for a public use. The construction and maintenance of the highways are acts of the State performed by its authorized instrumentality, the Highway Department. State v. Malone, 168 S.W.2d 292 (Tex.Civ.App.-Austin 1943, writ ref’d w. o. m.). The jury found that the elevating of the highway caused the overflow of water on the Appellant’s property, Special Issue No. 1, and that the culverts and service roads were constructed in such a manner as to cause an overflow, Special Issue No. 2, and by Special Issue No. 3 it was found that such overflow injured the real and personal property of the Appellant. Damages were found to be in a total sum of $40,137.50.

It is well established that upon proper pleading and proof the Appellant is entitled to recover damages from the Appellees for the taking, damaging, or destroying of her property for public use, under Article 1, Sec. 17, of the State Constitution. State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941), is a case very similar to this one on the fact situation; here, a recovery was allowed under this Section of the Constitution, the Court making the distinction that liability of the State under this Section of the Constitution should not be confused with the claim for damages caused by the negligent acts or wrongs committed by its agents or officers. Additional authorities are: State v. Malone, supra; State v. Sparks, 296 S.W.2d 609 (Tex.Civ.App.—Eastland 1956, no writ); Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (Tex.1961); DuPuy v. City of Waco, 396 S.W.2d 103 (Tex.1965).

As indicated, the jury answered all issues except one in favor of the Plaintiff. That issue is number 9 and was cited by the Defendant-Appellees in its motion for judgment. It is obviously the basis of the trial Court judgment, and in that we think the Court erred. Special Issue No. 9 reads:

“Do you find from a preponderance of the evidence that the construction of the Skeen home in a low area was a producing cause of the property damage to the Skeen home by water?”

To which the answer was “We do.”

We do not construe this as a controlling issue, one which will support a judgment. Rather, it is immaterial as being evidentiary only. By this issue, the jury was told that the property was located in a low area, and was asked if that was a producing cause of the damage to it. The jury could not answer the issue otherwise with the instructed fact of the “construction in a low area.” The finding is a recognition of a law of nature that water will seek its level. The property had to be in a low area or the water would never have gone to it. The controlling issues here are made by the constitutional provision. Liability issues for this inverse condemnation are that there was a taking or damaging and that it was for a public use. As noted earlier in this opinion, the jury had answered those issues favorably to the Appellant so that liability attached. Special Issue No. 9 is not controlling of such liability. It is not a finding that flooding of the property would have occurred independently of the elevation of the highway. It must be considered as an immaterial issue, which may be disregarded. Grubb v. Grubb, 525 S.W.2d 38 (Tex.Civ.App.—El Paso 1975, writ ref’d n. r. e.); Perales v. Braslau’s Furniture Company, 493 S.W.2d 638 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.); Fidelity & Casualty Company of New York v. Jefferies, 545 S.W.2d 881 (Tex.Civ.App.—Tyler 1976, no writ).

The immateriality of Special Issue No. 9 is seen when we look at the jury’s findings to other issues. By Special Issue No. 8, it was found that the construction operations of the Highway Department were done in such a manner as to change or divert the natural flow of rainwater along the highway right-of-way to the Midland Draw where the property was located; by Special Issue No. 10, it was found that the Skeens “did not” purchase and occupy a home subject to water damage from floodwater draining to the Midland Draw; by Special Issue No. 12, it was found that the failure of the Skeens to ascertain the relative elevation of their property “was not” a producing cause of the property damage; and by Special Issue No. 13, it was found that the property damage “was not” the result of the acts of God as caused by unusual and extraordinary rainfall flooding the Midland Draw and drainage facilities to it. As an immaterial issue, Special Issue No. 9 may be disregarded. Rule 301, Tex.R.Civ.P., provides that the judgment must conform to the verdict, but it is only when an answer to an issue is material that a judgment must conform to the findings of the jury. T. A. Manning & Sons, Inc. v. Ken-Tex Oil Corporation, 418 S.W.2d 324 (Tex.Civ.App.—Austin 1967, writ ref d n. r. e.).

Appellees seek to assert two cross-points to the effect that the trial Court correctly granted Appellees’ motion for judgment non obstante veredicto for the reason that there is no evidence to support the damage issues, and for the further reason that there is no jury finding or basis in the record of evidence on a proper measure of damages. We are of the opinion that because of the post verdict procedure of Appellees, they have not preserved these points for our consideration on appeal. Ap-pellees filed on the same day both a motion for judgment and a motion for judgment non obstante veredicto. They were not in the alternative. There is nothing in the record to indicate that the Court ever considered the motion for judgment non ob-stante veredicto. Such a motion not acted on by the Court preserves nothing for review, and furnishes no basis for a point of error. Ladd v. Knowles, 505 S.W.2d 662 (Tex.Civ.App.—Amarillo 1974, writ ref’d n. r. e.); Murphy v. Maroney, 456 S.W.2d 787 (Tex.Civ.App.—Waco 1970, writ ref’d n. r. e.).

It is clear from the judgment that the trial Court rendered judgment based on the motions for judgment. It recites that the Plaintiff and Defendants duly filed motions for judgment; that after due notice came the parties by their attorneys of record urging their respective motions for judgment; that the Court requested that the attorneys file briefs thereon; and that thereafter, after reviewing the evidence in the case upon consideration of the motions for judgment, the Court was of the opinion that the Defendant-Appellees should prevail. Having filed a motion for judgment, Appellees are in no position to question the sufficiency of the evidence. “A motion for judgment on the verdict is an affirmation by the movant that the findings of the jury are supported by competent evidence. Wilson v. Burleson (Tex.Civ.App.—Waco, 1962, n. r. e.), 358 S.W.2d 751, 753.” Braswell v. Braswell, 476 S.W.2d 444 (Tex.Civ.App.—Waco 1972, writ dism’d).

The judgment of the trial Court is reversed and judgment is here rendered that the Appellant recover of and from the Appellees her damages in the sum of $40,-137.50, together with interest at the rate of six percent (6%) per annum from the date of injury, September 1, 1970.

OSBORN, J., not sitting.


author: COLEMAN, Chief Justice.

text:
    In the Matter of G_L_G_ et al., children.
    No. 16884.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 17, 1977.
    Rehearing Denied April 14, 1977.

      Jeffrey J. Skarda, Nicholas R. Serna, Houston, for relator.
    Joe G. Resweber, County Atty., J. Alexander Johnson, Asst. County Atty., Carol S. Vance, Dist. Atty., Elizabeth Bridges, Asst. Dist. Atty., Houston, for appellee.
   COLEMAN, Chief Justice.

This is an original proceeding whereby Vivian Goffney, relator, seeks a writ of mandamus to compel Judge Robert L. Low-ry, Judge of the Juvenile Court, to allow relator to prosecute an appeal from a termination of parental rights without paying the costs of appeal.

An affidavit in the form required by Rule 355, Texas Rules of Civil Procedure, was filed in the trial court. A contest was filed by the District Clerk of Harris County, Texas. After a hearing as required by the rule the trial judge denied the application to appeal on an affidavit of inability to. pay costs. Findings of fact and conclusions of law were filed. No statement of facts is before this court.

The rule to be followed by the trial court in determining whether or not to sustain an affidavit of inability to pay costs is set out in Pinchback v. Hockless, 139 Tex. 536, 164 S.W.2d 19 (1942), in these words:

“Where, from the record as a whole, it really appears that a party is unable to pay the costs, or give security therefor, the court should unhesitatingly grant the relief prayed for.”

The court also said:

“. . .In passing on the ability to pay costs, or give security therefor, and the right of a party to be exempted therefrom, the court must look to the facts as a whole in the light of the objects intended to be accomplished. Obviously, if a laborer was barely earning the necessities of life for himself and family, ordinarily he should not be required to mortgage his hand tools or household furniture in order to raise funds to pay the court costs. On the other hand, if a party has a credit rating that will enable him to borrow the money, or if he is earning a substantial income, although he is expending it as rapidly as it comes in, or if he owns an automobile or truck or other valuable property, although exempt from execution, which he could mortgage or otherwise dispose of and thereby secure the necessary funds without depriving himself and his family of the necessities of life, he should be required to pay the costs, or give security therefor.”

In an original proceeding for writ of mandamus as a practical matter it will be impossible for the court to review the record made in the trial court if, in fact, the applicant is unable to pay the costs or any part thereof. The applicant obviously would be unable to pay the costs of preparing a statement of facts. In Pinchback v. Hockless, supra, it appears that the Supreme Court considered the affidavits filed in support of the motion and in support of the contest. We have before us a certified copy of findings of fact and conclusions of law filed by the trial court, and the sworn application filed by the applicant.

The facts before us are sketchy. It appears that at the time of the hearing Mrs. Goffney was unemployed and her income was from public assistance. She was denied loans on the morning of the trial by four loan companies located in the vicinity of the courthouse. She testified that members of her family might lend her some of the costs of appeal. In his findings of fact the trial judge stated that the relator testified that she thought she could borrow money for costs of appeal from her relatives, who at that time were supporting the relator and her children. The court also found that counsel for relator stipulated orally that he was employed by the Houston Legal Foundation; that the Houston Legal Foundation did in fact have funds to pay for costs of appeal; and that the Foundation had in fact paid costs of appeal, including transcript and statement of facts, in every case appealed by the Houston Legal Foundation except two cases appealed by this counsel. The trial court found that the relator testified she had held three different jobs since the date of the original hearing, and that she owned a “television or stereo set” that she had not attempted to sell, mortgage or pawn.

A judgment terminating the relator’s parent-child relationship with one of her children was entered and signed on October 21, 1976. A motion for new trial was filed on October 28, and was overruled on December 3, 1976. The affidavit of inability to pay costs of appeal was filed on December 2, 1976, and the hearing was held on January 27, 1977.

It appears that on the date of the hearing the time limit for the filing of an appeal bond had passed. The Houston Legal Foundation had not filed bond and must be presumed to have refused to furnish Mrs. Goffney funds with which to pay the costs of appeal. There is nothing in the record to indicate that funds were available to Mrs. Goffney from the Houston Legal Foundation with which to pay the costs of appeal or to give security therefor.

The record reflects that the relator was not working and was being supported by relatives. Relator owns either a television set or a stereo set, the value of which is not established.

The record before us shows that the relator is not earning sufficient funds to provide the necessities of life for herself and her family and that she does not have such a credit rating that will enable her to borrow funds for that purpose.

The record also reflects that the relator thought that her relatives would furnish money to pay at least a portion of the costs of appeal. There are no facts in the record to show whether payment of these costs by the relatives would be a financial burden on them. Rule 355 does not require that an indigent litigant be required to seek charity from relatives in order to demonstrate her inability to pay the costs of appeal or give security therefor. However, even though a litigant has not established a credit rating sufficient to qualify him for a commercial loan, if the evidence reflects the probability that a relative is able and willing to furnish such funds to the litigant, the trial court would not abuse his discretion by denying the application to appeal on an affidavit of inability to pay costs.

The record which this court must review is the record made in the trial court and presented to this court by way of affidavits. We must determine whether or not the trial court abused its discretion, and a finding of abuse of discretion could not be based on facts which were not presented in the trial court. Williams v. Maynard, 515 S.W.2d 9 (Tex.Civ.App.-Austin 1974, writ dism’d).

Relator urges as an additional ground for the granting of this writ the contention that the trial court abused its discretion in refusing to continue the hearing for a reasonable time to allow relator the opportunity to seek funds from her relatives. This is not an appeal from the judgment entered by the trial court. As a general rule the act that the trial court has discretion to refuse to perform, or that calls for the exercise of his judgment on matters of fact, is more than ministerial and is not enforceable by the writ. 32 Tex.Jur.2d, Mandamus, § 19, pp. 620-621. This court lacks the authority to order the trial court to set aside its judgment and rehear the contest because the trial court exercised its discretion in refusing to permit a continuance for the purpose of gaining additional testimony.

While this court has gained the impression that relator probably cannot pay the costs of appeal, we cannot say that the trial court abused its discretion in sustaining the contest because relator has failed to show that she has no property from which funds sufficient to pay the costs of appeal could be realized and because the record contains evidence that the funds probably could be obtained from relatives. Under the facts shown by the affidavits in this case we are of the opinion that the relator has not met the burden of proof placed on her by Rule 355, and for that reason the application for writ of mandamus is denied.


author: COULSON, Justice.

text:
    William J. ESTRADA, Appellant, v. RIVER OAKS BANK & TRUST COMPANY, Appellee.
    No. 1494.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 23, 1977.
    Rehearing Denied May 11, 1977.

      William P. Pannill, Houston, for appellant.
    Mike A. Pohl, Bracewell & Patterson, Houston, for appellee.
   COULSON, Justice.

River Oaks Bank & Trust Co. sued George J. Lewis on a promissory note secured by a collateral assignment of four unindorsed promissory notes executed by Dr. William J. Estrada payable to the order of Lewis. River Oaks joined Dr. Estrada as a defendant to recover on the four notes held as collateral. Summary judgment was granted River Oaks against Lewis on the principal obligation, and Lewis is not a party to this appeal. River Oaks and Estrada filed opposing motions for summary judgment; River Oaks claiming it was entitled to recover on the four notes as a holder in due course, and Estrada contesting River Oaks’ holder in due course status, and asserting a complete offset by virtue of an unsatisfied judgment awarded Estrada against Lewis on another note. The trial court granted summary judgment for River Oaks and Dr. Estrada perfected this appeal. Having determined that neither party was entitled to summary judgment, we reverse and remand.

On February 25, 1970 Estrada executed four promissory notes (the Estrada notes) totalling $21,936.05 to Lewis to acquire part interest in four parcels of Harris County real estate. The notes were made payable to the order of Lewis in installments due each six months, the final installments due February 25, 1973. Estrada, in a memorandum in the trial court, asserted that payments made on the notes reduced the principal sum owed Lewis to $13,161.55, but Estrada did not plead payment in his answer or in his motion for summary judgment, and no evidence of the alleged payments appears in the record.

On December 15,1971 George Lewis, William Estrada, and GEM Motors executed a promissory note to the order of Jacinto City Bank for the principal sum of $20,000.00 (the 1971 note), due on or before March 14, 1972. Upon default, Estrada paid the amount owed on the note to Jacinto City Bank, and Jacinto City Bank indorsed the note, without recourse, to Estrada.

The 1971 note bears Estrada’s signature as a comaker, but Estrada contends that he signed the note merely as a surety. Accordingly, Estrada sued George Lewis and GEM Motors on the 1971 note. On January 16, 1975, final judgment was entered for Estrada against Lewis for $26,715.27 plus interest and attorney’s fees. It is this judgment that Estrada contends is a complete offset to the four notes assigned by Lewis to River Oaks.

River Oaks loaned Lewis $15,000.00 on August 8, 1972. In connection with this loan, Lewis executed a promissory note to River Oaks (the original Lewis note), secured by a collateral assignment of the four promissory notes executed by Estrada to Lewis in 1970 (the Estrada notes). Although it is undisputed that ample space existed on the front and back of the Estrada notes, Lewis did not indorse any of the Estrada notes to River Oaks. Lewis did sign a single collateral assignment, expressly referring to the Estrada notes, which was stapled by River Oaks to the Estrada notes. Lewis made regular loan reductions on the original note, and a renewal note for $6,000.00 was executed by Lewis on January 2, 1975 (the Lewis renewal note).

Lewis ultimately defaulted on the $6,000.00 renewal note, prompting River Oaks to sue Lewis and Estrada on August 25, 1975. River Oaks sought to recover $6,000.00 plus interest and attorney’s fees from Lewis on the renewal note; $21,936.05 plus interest and attorney’s fees from Estrada on the Estrada notes.

Estrada filed a motion for summary judgment supported by a record consisting of River Oaks’ original petition, Estrada’s first amended original answer, Estrada’s request for admissions and answers thereto, and a sworn “Memorandum of Points and Authorities in Support of Motion for Summary Judgment” which was attached to the motion for summary judgment. River Oaks filed separate motions for summary judgment against Lewis and against Estrada. River Oaks’ motion against Estrada, supported by the attached affidavit of River Oaks vice president Kim D. Wheless, sought recovery of $21,936.05 plus interest and attorney’s fees.

An interlocutory judgment for $6,000.00 plus interest and attorney’s fees was entered for River Oaks against Lewis. On May 13, 1976 summary judgment was granted for River Oaks against Lewis and Estrada, jointly and severally, for $6,000.00 plus interest and attorney’s fees. This judgment became final when a cross-action by Lewis against Estrada was severed from the main suit. Estrada has perfected an appeal from the granting of River Oaks’ motion for summary judgment and from the overruling of Estrada’s motion for summary judgment.

When both parties file motions for summary judgment and one motion is granted and the other is overruled, the trial court’s judgment becomes final and appeal-able. On appeal the court of civil appeals should determine all questions presented, including the propriety of the order overruling the losing party’s motion for summary judgment. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958). Therefore, it is proper for this court to consider the decision of the trial court in overruling Estrada’s motion for summary judgment.

Estrada claims the trial court erred in granting summary judgment for River Oaks because its moving papers were either conclusory or presented without notice to Estrada. River Oaks contends that Estrada’s sworn brief was not competent summary judgment evidence. Both parties rely on the two supreme court decisions in Hidalgo v. Surety Sav. & Loan Ass'n, 462 S.W.2d 540, 545 (Tex.1971) (pleadings are not summary judgment evidence) and 487 S.W.2d 702, 703 (Tex.1972) (conclusory affidavits will not support summary judgment). We need not decide these procedural issues. Even if we were to assume that both parties submitted proper summary judgment evidence to the trial court, our interpretation of the Uniform Commercial Code would still preclude summary judgment for either movant.

I.

This appeal presents the question of whether the transferee of four unin-dorsed promissory notes stapled to a single collateral assignment is a holder in due course. “

A “holder in due course” is defined in section 3.302 of the Texas Business and Commerce Code. A holder in due course must meet five conditions set forth in the statute. He must be: (1) a holder (2) of a negotiable instrument who took it (3) for value (4) in good faith (5) without notice that it was overdue or had been dishonored or of any defense against or claim to it on the part of any person. Failure to meet any of these conditions prevents a party from qualifying as a holder in due course. J. White & R. Summers, Uniform Commercial Code § 14-2 (1972) [hereinafter cited as White & Summers]. Therefore, only a “holder,” as defined in the Code, can be a holder in due course. White & Summers, supra, at § 14-3.

The Code definition of a holder applies to payees and transferees of negotiable instruments. A transferee, however, must also meet the negotiation requirements of section 3.202:

(a) Negotiation is the transfer of an instrument in such form that the transferee becomes a holder. If the instrument is payable to order it is negotiated by delivery with any necessary indorsement; if payable to bearer it is negotiated by delivery.
(b) An indorsement must be written by or on behalf of the holder and on the instrument or on a paper so firmly affixed thereto as to become a part thereof.

The Estrada notes were payable to the order of Lewis and, as order instruments, could be negotiated to River Oaks only by delivery with Lewis’ indorsement. Lawson v. Finance America Private Brands, 537 S.W.2d 483, 485 (Tex.Civ.App., El Paso 1976, no writ). River Oaks is not in possession of instruments indorsed to it or its order unless the indorsement on the collateral assignment stapled to the notes is so firmly affixed thereto as to become a part thereof. If the signature on the collateral assignment is not an indorsement of the notes, River Oaks is neither a holder nor a holder in due course. Tex.Bus. & Comm. Code Ann. §§ 3.302, 1.201(20), and 3.202(a).

Comment 3 to section 3.202 is the only Code explanation of when an indorsement on a separate instrument is sufficient for negotiation:

3. Subsection (2) follows decisions holding that a purported indorsement on a • mortgage or other separate paper pinned or clipped to an instrument is not sufficient for negotiation. The indorsement must be on the instrument itself or on a paper intended for the purpose which is so firmly affixed to the instrument as to become an extension or part of it. Such a paper is called an allonge.

An allonge has been defined as: “[a] piece of paper annexed to a bill of exchange or promissory note, on which to write endorsements for which there is no room on the instrument itself.” Black’s Law Dictionary (rev. 4th ed. 1968). Historically, when a promissory note was so covered with prior indorsements that no space remained for the indorsement of the last holder, a piece of paper was pasted or fastened by wafer to the bottom of the note to provide space for additional indorsements. E. g, Bishop v. Chase, 156 Mo. 158, 56 S.W. 1080 (1900). The majority of decisions under the Uniform Negotiable Instruments Act (N.I.L.), the forerunner of the U.C.C., held that lack of space on the instrument for further indorsements was a necessary predicate for use of an allonge. See An-not., 56 A.L.R. 923-24 (1928). There is some authority for the proposition that the Code permits indorsement by allonge only if the instrument is so covered with previous indorsements that convenience or necessity requires additional space for further in-dorsements. Tallahassee Bank & Trust Co. v. Raines, 125 Ga.App. 263, 187 S.E.2d 320, 321 (1972); 2 R. Anderson, Uniform Commercial Code § 3-202:24 at 767 (2d ed. 1971).

We will not pass on that question for two reasons. First, the backs of the Estrada notes are not reproduced in the record, and, although the fact is not contested by River Oaks, we cannot say with certainty that space exists on the notes for Lewis’ indorsement. Second, under the facts of this case, the collateral assignment would not be an indorsement of the notes even if the notes were so covered with previous indorsements that use of an allonge would be an absolute necessity. All four of the Estrada notes were transferred by a single collateral assignment bearing a single signature by Lewis. River Oaks argues that this single signature is an indorsement of all four notes. We disagree. The collateral assignment cannot possibly be so firmly affixed to four notes as to become an extension or part of each one. Although the assignment could conceivably be an indorsement of one of the notes, a court could not determine which note the parties intended to indorse.

River Oaks urges this court to adopt the holding of the Colorado Supreme Court in Lamson v. Commercial Credit Corp., 187 Colo. 382, 531 P.2d 966 (1975). In Lamson, a special indorsement typed on two legal size sheets of paper was stapled to two checks. This stapling was held to be an adequate method of firmly affixing the in-dorsement when it would have been physically impossible to place all of the language of the indorsement on the small checks. The facts in Lamson differ significantly from those before this court. In Lamson, the transferor of the checks signed a document which was clearly intended to be a special indorsement of the checks. In the case at bar, River Oaks wants this court to construe the signature on a collateral assignment to be an indorsement of four notes. We do not believe that the legal principles announced in Lamson are applicable to the facts before this court. The problems inherent in negotiating checks, small in dimension, by a lengthy special indorsement inject policy considerations not present in the case at bar. We are aware of no case, based upon facts substantially similar to those before this court, that has adopted the position taken by River Oaks.

We hold that the signature of Lewis on the single collateral assignment is not an indorsement of the four Estrada notes attached thereto, and, therefore, River Oaks is not a holder in due course of those four notes.

II.

River Oaks argues that even if the collateral assignment is not so firmly affixed to the Estrada notes as to become a part thereof, the rule of incorporation by reference is effective to make River Oaks a holder in due course. The rule of incorporation by reference provides that where two or more instruments, executed contemporaneously or at different times, pertain to the same transaction, the instruments will be read together although they do not expressly refer to each other. Board of Ins. Comm’rs v. Great Southern Life Ins. Co., 150 Tex. 258, 267, 239 S.W.2d 803, 809 (1951). The rule also applies to instruments executed in connection with the same transaction when one or more of the instruments are promissory notes. Pendleton Green Assoc. v. Anchor Sav. Bank, 520 S.W.2d 579, 584 (Tex.Civ.App.-Corpus Christi 1975, no writ); Texas State Bank of Austin v. Sharp, 506 S.W.2d 761, 763 (Tex.Civ.App.-Austin 1974, writ ref'd n. r. e.); Tex.Bus. & Comm.Code Ann. § 3.119.

Although section 3.119 permits the terms of a negotiable instrument to be modified by another written agreement executed as a part of the same transaction, we find no support in the Code for the proposition that a signature on a collateral assignment can serve as an indorsement “on” a series of promissory notes. We are aware of no case decided under the U.C.C. in Texas or any other jurisdiction that has applied the rule of incorporation by reference to the extent urged by River Oaks.

River Oaks relies heavily on the court of civil appeals decision in First Nat’l Bank of Bowie v. Bell, 88 S.W.2d 119, 122 (Tex.Civ.App.-Fort Worth 1935, writ dism’d), which held that a written assignment executed in conjunction with the transfer of an unin-dorsed note was a substantial compliance with the N.I.L. requirement that an in-dorsement be on the instrument itself or upon a paper attached thereto. We do not believe that the Bowie decision is a sound construction of the indorsement requirements of the N.I.L., and even if the holding is correct, it is not binding in a case arising under the Code.

Facts similar to those in Bowie were presented in Penny v. Kelley, 528 S.W.2d 330 (Tex.Civ.App.-Beaumont 1975, no writ). The holder of a note attempted to transfer the note to a bank by including a simple assignment of the note among the documents transferred, but the bank declined to approve the transaction because no indorsement had been made on the note itself. The court held that the assignment of the note, without indorsement upon the instrument itself, was not in compliance with the negotiation provisions of the Code. 528 S.W.2d at 333.

Courts in other jurisdictions which have dealt with the question have refused to extend the incorporation by reference rule to cover indorsements of promissory notes. In Security Pac. Nat'l Bank v. Chess, 58 Cal.App.3d 555, 129 Cal.Rptr. 852 (1976), thirteen notes were transferred by their holder to a bank by a series of written assignments not attached to the notes. Only nine of the notes were indorsed by the assignor. The bank argued that the notes and assignments should be read together as making the bank a holder in due course of the four unindorsed notes. This argument was rejected by the California Court of Appeals:

This argument confuses transfer with negotiation. The separate assignment is, of course, effective as evidence that the notes were transferred to plaintiff, and plaintiff became the transferee and owner, at least for security purposes.
But a transferee is not in this situation a holder. Negotiation of an order instrument depends upon indorsement, and in-dorsement “must be written by or on behalf of the holder and on the instrument or on a paper so firmly affixed thereto as to become a part thereof.” (§ 3202, subd. (2).) The defect in plaintiff’s position is that nothing was written on the four notes by or on behalf of ELC. 129 Cal.Rptr. at 856.

Another California Court of Appeals case, decided under the N.I.L., held that incorporation by reference cases have no bearing on the requirement of negotiable instrument law that an indorsement must be upon the note itself or upon a piece of paper firmly affixed thereto. Lopez v. Puzina, 239 Cal.App.2d 708, 49 Cal.Rptr. 122, 125 (1966).

In a case decided under the N.I.L., but after adoption of the U.C.C., the Supreme Court of Maine rejected an incorporation by reference argument:

. Plaintiff argues that the document he signed incorporates the note by reference and is thus an endorsement “on” the note. Although the doctrine of incorporation by reference is commonly used in wills and contracts, we can find no instance in which it exists in the area of endorsements of negotiable instruments. Although Plaintiff’s document attempts expressly to incorporate the note, the Plaintiff cites no authority for this usage of the doctrine and we ourselves can find none. This Court is not persuaded that it should extend the doctrine to endorsements of negotiable instruments. Adoption of the incorporation doctrine could well undermine the precise mandate of N.I.L. section 31 and the smooth functioning of the negotiation process itself. No cogent reasons exist for changing the long-held requirement of attachment of an endorsement to the instrument. In fact, this requirement is continued by the even stricter language of the N.I.L.’s successor, the U.C.C., in 11 M.R.S.A. § 3 — 202(2). That section demands that an endorsement be “firmly affixed” to the instrument, as opposed to merely “attached”. Hills v. Gardiner Sav. Institution, 309 A.2d 877, 880-81 (Me.1973).

We agree with the courts of California and Maine that no cogent reasons exist for extending the incorporation by reference doctrine to indorsements of negotiable instruments. “An instrument’s usefulness in negotiation or transfer can only be evidenced by looking at it or any attachments and determining if any endorsements of any kind exist.” Gardiner Sav., supra, at 880. Reference to collateral instruments to determine the ownership of or liability on a promissory note would necessarily impede the use of negotiable instruments as a commercial medium of exchange. We reject River Oaks’ argument that it is a holder in due course by the rule of incorporation by reference.

III.

Our decision today does not contravene the mandate that the U.C.C. is to be liberally construed and applied to promote its underlying purpose to simplify, clarify and modernize the law governing commercial transactions. Tex.Bus. & Comm.Code Ann. § 1.102(b)(1). Indorsement by allonge has never been considered as prudent or desirable as an indorsement on the instrument itself. See, e. g., Clark v. Thompson, 194 Ala. 504, 69 So. 925 (1915). Section 31 of the N.I.L. allowed an indorsement to be written upon a paper “attached” to the negotiable instrument; section 3.202 of the Code requires that the paper be “so firmly affixed” to the instrument “as to become a part thereof.” This change in wording evidences a clear intent by the Code draftsmen to restrict, rather than expand, the use of allonges.

River Oaks had the specifically enforceable right to have the unqualified indorsement of Lewis on the Estrada notes. Tex.Bus. & Comm.Code Ann. § 3.201(c). For reasons unknown to this court, River Oaks had Lewis sign only the collateral assignment. While this procedure may be common in the banking community, we fail to see how the simple process of having a transferor indorse his notes as well as the assignment would impede the negotiation of commercial paper. Neglecting to acquire the transferor’s indorsement on an instrument introduces a needless element of uncertainty into commercial transactions which should be consummated with utmost care. In fact, use of an allonge would generally create a fact issue as to whether the paper was so firmly affixed to the instrument as to become a part thereof, thus precluding summary judgment for the instrument’s owner. Tex.R.Civ.P. 166-A(c).

Our decision does not prevent River Oaks from recovering on the notes. Since River Oaks is neither a holder nor a holder in due course, it is not aided by any presumption that it is entitled to recover. Lawson v. Finance America Private Brands, 537 S.W.2d 483, 485 (Tex.Civ.App.-El Paso 1976, no writ); see Whittenburg v. Cessna Fin. Corp., 536 S.W.2d 444, 446 (Tex.Civ.App.-Houston [14th Dist.] 1976, writ ref’d n. r. e.); Carter v. DeJarnatt, 523 S.W.2d 88, 91 (Tex.Civ.App.-Texarkana 1975, writ ref’d n. r. e.); Tex.Bus. & Comm.Code Ann. § 3.307(b). The collateral assignment gives River Oaks the right to bring suit on the notes as an assignee. However, River Oaks, as a mere assignee, took the notes subject to all defenses and equities to which the notes were subject in the hands of Lewis. Tex.Bus. & Comm.Code Ann. §§ 3.201(a), 3.306(2); Tallahassee Bank & Trust Co. v. Raines, 125 Ga.App. 263, 187 S.E.2d 320, 321 (1972); 2 R. Anderson, Uniform Commercial Code § 3-201:9 (2d ed. 1971). Therefore, on remand, River Oaks can sue to recover the face value of the four notes, and Estrada can introduce evidence of his alleged offsets to those notes.

It should be noted that a holder in due course may transfer his rights as such under the “shelter” provision of section 3.201(a). That provision apparently applies to all transferees regardless of whether the transferees are holders. There is no proof in the record that Lewis was a holder in due course, but a payee may become a holder in due course if he satisfies all of the requirements. Tex.Bus. & Comm. Code Ann. § 3.302(b), § 3.302, Comment 2. If River Oaks can prove that Lewis was in all respects a holder in due course, River Oaks can assert the rights of a holder in due course.

IV.

Estrada claims that the trial court erred in failing to grant his motion for summary judgment, because the judgment entered against Lewis on the 1971 note is a complete offset to the four Estrada notes assigned to River Oaks. Our determination that River Oaks was not enti-tied to summary judgment has no bearing on whether Estrada’s motion should have been granted. When parties file opposing motions for summary judgment, each mov-ant has the burden to prove that he is entitled to judgment as a matter of law, and neither party can prevail because of the failure of the other to discharge his burden. Miller & Freeman Ford v. Greater Houston Bank, 544 S.W.2d 925, 926 (Tex.Sup.1976); Tigner v. First Nat’l Bank of Angleton, 153 Tex. 69, 74, 264 S.W.2d 85, 87 (1954). Estrada had the burden of producing competent summary judgment evidence of his alleged offset. Tex.Bus. & Comm. Code Ann. § 3.307(b); Whittenburg v. Cessna Fin. Corp., 536 S.W.2d 444, 445 (Tex.Civ.App.-Houston [14th Dist.] 1976, writ ref’d n. r. e.).

Estrada contends that he signed the 1971 note merely as a surety (“accommodation party” under the U.C.C.), and that since he paid Jacinto City Bank, he has a right of recourse against Lewis (the “accommodated party”) under section 3.415(e) of the Code:

(e) An accommodation party is not liable to the party accommodated, and if he pays the instrument has a right of recourse on the instrument against such party.

An accommodation party is liable in the capacity in which he has signed the instrument. Tex.Bus. & Comm.Code Ann. § 3.415(b). The copy of the 1971 note in the record reflects that Lewis and Estrada signed the note as co-makers, which subjected the makers to joint and several liability on the obligation. Tex.Bus. & Comm. Code Ann. § 3.118(5); Riley v. First State Bank, Spearman, 469 S.W.2d 812, 817 (Tex.Civ.App.-Amarillo 1971, writ ref’d n. r. e.); Clark, Suretyship in the Uniform Commercial Code, 46 Tex.L.Rev. 453, 455 (1968). If Estrada signed the note as a surety, nothing on the note itself indicates that fact. Except as against a holder in due course who took the instrument without notice of the accommodation, Estrada could use parol evidence against any person to prove his suretyship status. Tex.Bus. & Comm.Code Ann. § 3.415(c); White & Summers, supra, § 13-13 at 430; see Peters, Suretyship Under Article 3 of the Uniform Commercial Code, 77 Yale L.J. 833 (1968).

As enunciated by the supreme court in Darden v. Harrison, 511 S.W.2d 925, 928 (Tex.Sup.1974):

The essential element that the party claiming accommodation status must prove is that the party claimed to be accommodated received the signature of the surety for the sole purpose of obtaining credit thereby, under an agreement that the accommodated party is principally responsible for payment at maturity, or that the instrument was executed for a limited purpose.

The 1975 judgment for Estrada against Lewis does not establish that Estrada signed the 1971 note as an accommodation party. No findings of fact or conclusions of law were made, and the 1975 judgment does not recite that Estrada was a surety or describe any evidence offered by Estrada to prove his accommodation status. The 1975 judgment merely refers to a promissory note, not clearly identified in the judgment, and approves an agreement between the parties regarding liability on that note.

Moreover, River Oaks was not a party to the 1971 note or the 1975 judgment and is not bound by factual or legal determinations possibly implicit in that judgment. It is a rule of universal application that the rights of no one shall be concluded by a judgment rendered in a suit to which he was not a party. Read v. Allen, 58 Tex. 380, 382 (1883). We hold that, as against River Oaks, Estrada failed to discharge his burden to prove that no material fact issues existed and that he was entitled to judgment as a matter of law. Therefore, his motion for summary judgment was properly denied. Tex.R.Civ.P. 166-A(c).

The judgment of the trial court granting summary judgment for River Oaks is reversed and remanded. The failure of the trial court to grant summary judgment for Estrada is affirmed.

      . This undisputed fact cannot be verified by the court, because only the faces of the notes are reproduced in the record.

      . Tex.Bus. & Comm.Code Ann. § 3.302 (1968) provides, in pertinent part:
      (a) A holder in due course is a holder who takes the instrument
      (1) for value; and
      (2) in good faith; and
      (3) without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.

      . A holder is defined in section 1.201(20):
      “Holder" means a person who is in possession of a document of title or an instrument or an investment security drawn, issued or indorsed to him or to his order or to bearer or in blank.

      . The N.I.L. was enacted in Texas in Tex.Laws 1919, ch. 123. Sections 30, 31, and 32 of the N.I.L. were combined and reworded into section 3.202 of the Code.

      . Section 3.119 provides:
      (a) As between the obligor and his immediate obligee or any transferee the terms of an instrument may be modified or affected by any other written agreement executed as a part of the same transaction, except that a holder in due course is not affected by any limitation of his rights arising out of the separate written agreement if he had no notice of the limitation when he took the instrument.
      (b) A separate agreement does not affect the negotiability of an instrument.

      . Section 3.201(a) provides:
      (a) Transfer of an instrument vests in the transferee such rights as the transferor has therein, except that a transferee who has himself been a party to any fraud or illegality affecting the instrument or who as a prior holder had notice of a defense or claim against it cannot improve his position by taking from a later holder in due course.


text:
    Henry J. CLAY, Appellant, v. Kathlyn G. CLAY, Appellee.
    No. 16806.
    Court of Civil Appeals of Texas, Houston (1st Dist.)
    March 24, 1977.
    Rehearing Denied April 21, 1977 — With Opinion.
    May 19, 1977. Second Motion.

      Karl E. Kraft, Houston, for appellant.
    Minter & Mahon, Gary D. Aguren, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from a judgment of the trial court dissolving the bonds of matrimony, providing for a property settlement, continuing in effect a temporary support order pending appeal, and assessing court costs against the appellant. The case was tried to a jury, but the appellant elected not to file a motion for a new trial.

Appellant contends that his points on appeal are properly based on the action of the trial court in denying his motion for judgment on the verdict. Both parties filed motions for judgment. The trial court entered no order reflecting her action on either of the motions.

The parties to this appeal were married on July 12, 1958. There are two minor children. Kathlyn Clay filed a petition for divorce on November 22, 1974, and Henry Clay answered with a general denial and a cross-action. Both parties went to trial pleading as grounds for divorce the no-fault provision of the Family Code, section 3.01, and section 3.02, the cruel treatment provision.

In response to special issues the jury made the following findings:

1. The marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.
2. Acts and conduct of Kathlyn Clay towards Henry Clay constituted cruel treatment of a nature that renders their further living together as husband and wife insupportable.
3. The best interests of the children will be served by placing custody in Kath-lyn Clay.
4. $1,050.00 per month is the necessary amount for the support and maintenance of the children.

Other issues were submitted and answered relating to the fair market value of certain property and monies on deposit.

The jury was unable to answer the special issues relating to whether Henry Clay was guilty of cruel treatment towards Kathlyn Clay and whether Mrs. Clay acted in good faith and with probable cause in filing and prosecuting the suit or whether it was necessary for her to file and maintain the suit. The parties agreed to receive the partial verdict, and Mrs. Clay waived her right to have the issues answered.

Appellant’s first three points relate to the action of the trial court in failing to enter a judgment granting a divorce to appellant on the cruel treatment finding. Appellant’s motion for judgment states no reasons why the judgment presented should have been entered in preference to the judgment prepared by the trial court. The judgment signed by the trial court purported to be a judgment on the jury’s verdict. The jury findings were recited. Instead of awarding a divorce to the appellant, the trial court merely dissolved the bonds of matrimony.

The guidelines developed by the Supreme Court of Texas in Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960), provide a basis for the solution of the problem in this case. The court held that Rule 324, Texas Rules of Civil Procedure, did not eliminate altogether the necessity for filing a motion for new trial as a prerequisite to appeal. With specific reference to a motion for judgment non obstante veredicto the court recognized that a party could forego the filing of a motion for new trial and predicate his points of error on appeal on the matters included in such motion. However, the court held that in such event the appellant could complain on appeal only on the denial of the motion non obstante veredicto. In Wagner v. Foster, supra, the Supreme Court also held that assignments of error in a motion for new trial which do no more than adopt from or refer in general terms to other motions do not “specify”, “distinctly set forth”, or “clearly identify” a ground of error, and form no proper basis for a point of error on appeal.

In Miller v. Miller, 274 S.W.2d 762 (Tex.Civ.App.—San Antonio 1954, error ref’d), the court said:

“Appellant filed two motions, one a motion for an instructed verdict and the other, which he termed plaintiff’s motion to enter judgment. Both motions were overruled. If this latter motion could be construed as a motion for judgment notwithstanding the verdict, or a motion for judgment in plaintiff’s favor on the verdict, then appellant would be entitled to complain on this appeal of its being overruled, and that would be the only matter of which he could complain in the absence of a motion for a new trial. . . .”

Appellant’s assignment that the trial court erred in overruling his motion for judgment does not “specify”, or “distinctly set forth”, or “clearly identify” a ground of error. The point is much too general to be the basis of an assignment of error in a motion for new trial. Rules 320, 321, 322 and 374, Texas Rules of Civil Procedure. It is likewise too general for consideration by this court. Wagner v. Foster, supra.

Where points on appeal are predicated on the denial of a motion for judgment the motion must specify the matters to be included in the court’s judgment, and the reason therefor. Merely attaching a form of judgment to a request for entry of judgment does not bring to the attention of the trial court anything except the fact that the person presenting the motion is requesting the trial court to enter a judgment in his favor. No specific “matters” are included in such a motion. Abbott v. Earl Hayes Chevrolet Co., 384 S.W.2d 782 (Tex.Civ.App.—Tyler 1964, no writ history).

The final paragraph of appellant’s first amended motion for entry of judgment reads:

“WHEREFORE, premises considered, and without waiver of his right to seek review of the rulings specified on the signature page hereof, Respondent respectfully moves the Court to enter the proposed Judgment annexed hereto.”

The paragraph to which reference was made reads:

“To which rulings and action of the Court (a) in so dividing the estate of the parties, (b) in requiring payment of $200,000.00 by Respondent to Petitioner as order in subparagraphs “A” and “B” above, (c) in assessing one-half of the auditor’s fee against Respondent, and (d) in assessing all court costs against Respondent, and for the purpose of obtaining review only of such specified rulings and action of the Court, Respondent in open Court excepted and gave notice of appeal to the Court of Civil Appeals sitting in Houston, Texas.”

While the action of appellant in referring to another instrument to set forth the matters of which he complains in his motion for judgment is not approved as a substitute for a motion for new trial, the points relate to matters which come within the discretionary power of the trial judge in a divorce proceeding and are not matters which are submitted to the jury. These matters were presented to this court by points in the appellant’s brief and will be considered.

The statement of facts reflects that the appellant strongly urged on the trial court his contention that the jury’s answer to the issue on cruelty required that the trial court enter a judgment granting a divorce to appellant. While it is our opinion that this point is not properly presented in the motion for judgment and fails to present a basis for a point on appeal, we are further of the opinion that the point does not present reversible error. See Moreno v. Jenkins, 436 S.W.2d 620 (Tex.Civ.App.—Austin 1968, writ ref’d n.r.e.).

In Cusack v. Cusack, 491 S.W.2d 714 (Tex.Civ.App.—Corpus Christi 1973, writ dism’d), the court stated:

“* * * When insupportability is relied on as a ground for divorce by the complaining spouse, if that ground is established by evidence, a divorce must be granted the complaining party, without regard as to whether either, both or neither of the parties are responsible for or caused the insupportability. Stecklein v. Stecklein, 466 S.W.2d 421 (Tex.Civ.App.—San Antonio 1971, no writ history). It is not incumbent upon the plaintiff who brings the divorce action upon the ground of insupportability to show any misconduct on the part of the defendant, but it is only incumbent upon that spouse to establish by the evidence that a state of insupportability exists regardless of whether it is anyone’s or no one’s fault.

Section 3.01, Family Code, provides:

“On the petition of either party to a marriage, a divorce may be decreed without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.”

This section authorizes the trial court to decree a divorce. It does not require the trial court to grant a divorce to either party to the suit. The issue to be determined by the court or the jury as fact finders is whether the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation. The jury, or the trial court when acting as a fact finder, is not concerned with the fault of the parties. While a divorce granted under the authority given in Section 3.01, supra, is popularly termed a “no fault” divorce it is in fact a divorce which the court is authorized to grant without regard to fault.

In the case under consideration the trial court was authorized by the verdict of the jury to grant a divorce as authorized by Section 3.01, supra. She was not required to grant a divorce to the appellant based on the jury’s finding of cruel treatment, although she could have done so in her discretion. The trial court was authorized to consider the finding on cruel treatment in connection with her duty to divide “the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage” as required by Section 3.63 of the Family Code.

The appellant presents a point that the trial court erred in dividing the estates of the parties in that the division made is so disproportionately favorable to appellee, and so unjust in the allocation of property as to constitute an abuse of discretion. Complaint is also made of the action of the trial court in requiring that appellant pay to appellee $50,000.00 in cash and to execute and deliver to her a promissory note for $150,000.00 payable in seven annual installments with interest as a part of the property settlement.

The parties have agreed that community property in the sum of $278,596.83 was accumulated during the course of the marriage. Appellee was shown to own separate property having a value of $50,292.38. Appellant was shown to own separate property having a value of $1,157,372.16. The court awarded appellee all of her separate property plus specific community assets having a value of $55,840.27. In addition the appellant was required to pay the appellee the sum of $50,000.00 in cash and to execute the $150,000.00 note. Appellant was awarded all of his separate property and specific community assets having a value of $222,-756.56. The value of the property awarded to appellee, exclusive of her separate property, was of the value of $255,840.27. While appellant received community assets valued at $222,756.56, after he has paid the $50,000.00 in cash and the value of the note is deducted he will be left with the sum of $22,756.56 as his share of the community estate. Some $40,000.00 in value of the separate property awarded to appellee consists of her undivided one-half interest in the residence occupied by the parties during their marriage. This interest was given to appellee by appellant during the marriage. The use of the residence was awarded to appellee during the minority of the two children of the marriage and thereafter to appellant. The youngest child will reach the age of eighteen in approximately two years from the date of entry of the judgment. In effect appellant was awarded a life estate in the separate property interest of appellee. Appellee was awarded none of appellant’s separate property which consisted in the most part of stock in a closely held corporation. The parties were married for some eighteen years. Prior to the marriage appellee worked as a medical secretary. She did not work during the marriage. Appellant owns one-fifth of the stock in Hahn & Clay, Inc. and serves as chairman of the board. In 1974 he received a gross income from salary and dividends of $89,067.28. Evidence was presented during the trial that Mr. Clay’s after-tax income over his life expectancy would be in excess of $1,000,000.00 while Mrs. Clay’s earning capacity as a secretary would amount to $143,793.00 after taxes.

Section 3.63 of the Family Code gives the trial court broad discretion as to the manner in which the “estate of the parties” is divided. In re Marriage of Jackson, 506 S.W.2d 261 (Tex.Civ.App.—Amarillo 1974, writ dism’d). The court may consider the disparity of earning powers, business opportunities, capacities and abilities, employment prospects, health of the parties, welfare of the children, and the parties’ separate property. In re Marriage of McCurdy, 489 S.W.2d 712 (Tex.Civ.App.—Amarillo 1973, writ dism’d). We are unable to hold that the trial court abused its discretion in dividing the property owned by the parties. Zaruba v. Zaruba, 498 S.W.2d 695 (Tex.Civ.App.—Corpus Christi 1973, writ dism’d).

The jury found facts sufficient to authorize the trial court to grant a divorce on “no fault” grounds. Based on a jury finding the trial court named appellee as managing conservator for the children. Appellant has not, and in the absence of a motion for new trial could not, attack the action of the trial court in appointing an auditor. Since it appears from the record that both appellant and appellee were successful in the trial court in part, we cannot say that the trial court abused its discretion in taxing one-half of the costs against each party, including one-half of the auditor’s fee.

The trial court continued a temporary order previously entered requiring appellant to pay temporary alimony to appellee and certain other expenses which might be incurred by her in connection with maintaining the residence of the parties and the support of the minor children.

It was well settled under the law in force prior to the adoption of the Family Code that a district court before which a divorce suit is pending had power and jurisdiction to enter an alimony order in favor of the wife, and against the husband, pending final disposition of the divorce proceeding, and had the power and jurisdiction to enforce such order by contempt proceedings. The district court had the power to make and enforce an alimony order pending a divorce action even after an appeal from the divorce judgment had been fully perfected to the court of civil appeals. Ex parte Hodges, 130 Tex. 280, 109 S.W.2d 964 (1937). The appellant contends that in this case the rule is inapplicable because a divorce was granted by the trial court and neither party is appealing this action of the court. He argues that although he seeks modification of the judgment to award the divorce to appellant based on the jury’s finding of cruel treatment, the bonds of matrimony heretofore existing between the parties had been effectively dissolved by the judgment. He then concludes that the order allowing temporary alimony is invalid in that it amounts to requiring payment of unlawful permanent alimony. It has long been the rule in this state that an order fixing temporary alimony is interlocutory and cannot be superseded on appeal. An appeal from a divorce judgment even though a supersedeas bond is filed does not supersede the child support or temporary alimony provisions of the judgment. Ex parte Kollenborn, 153 Tex. 350, 269 S.W.2d 339 (1954).

The judgment of divorce entered in this case is not final. The appellant has appealed that portion of the judgment decreeing a divorce and is seeking to have this court reverse and render that portion of the judgment so as to award a divorce to appellant on the ground of cruel treatment. It might then be possible to secure a review of the decision of this court by the Supreme Court of Texas. The same reason for allowing alimony pending a final determination of the divorce proceeding exists after a judgment of the district court from which an appeal has been taken as before the rendition of such a judgment. Until the property settlement provisions of the trial court’s judgment are finally determined appellee will be without funds to support herself and the minor children. While the language of the Family Code relating to temporary alimony and temporary support differs in some minor particulars from the language of the preceding statute, the difference does not require the adoption of a rule of law differing from that previously in force. The order entered of which complaint is made is still a temporary order which is hot incorporated in the final decree. It is not an appealable order and this court lacks jurisdiction to consider the action of the trial court in entering the order continuing in effect the support order previously entered. Ex parte Kollenborn, supra.

The judgment is affirmed.

ON MOTION FOR REHEARING

The appellant has properly pointed out that the opinion in this case fails to point out the fact that the parties had accumulated furniture which was awarded to the appellee. The court was in error in stating that the court costs were awarded against the parties equally. Only the auditor’s fee was taxed against the parties equally. The court costs were adjudged against the appellant.

The appellant also complains that no specific mention was made of his point of error complaining that the trial court erred in disregarding the jury finding in answer to Special Issue No. three. While this point of error was not quoted, it was considered in the opinion and no additional discussion is necessary.

The inaccuracies pointed out require no additional discussion and do not require the entry of a different judgment.

The motion is denied.