author: McKAY, Justice.

text:
    Janice Ruth FUQUA, Appellant, v. J. P. FUQUA, Jr., Appellee.
    No. 944.
    Court of Civil Appeals of Texas, Tyler.
    Aug. 26, 1976.
    Dan H. Hennigan, Houston, for appellant.
    Billy Payne, Bryan, for appellee.
   McKAY, Justice.

Appellant, Janice Ruth Fuqua, brings this appeal complaining of the division of community property incident to her divorce from appellee, J. P. Fuqua, Jr.

The trial to the court without a jury resulted in the rendition of a decree of divorce on November 3, 1975. There were no children born of the marriage. No findings of fact or conclusions of law were requested and none were filed.

In its decree the trial court found that the only property on hand at the dissolution of the marriage was community property. The only real property involved was a house and lot which had been the community residence. The remainder of the property was personalty. There were also some community debts outstanding at the dissolution of the marriage.

All of the property was listed in itemized schedules attached to the judgment. The decree awarded all of the property listed in Schedule I to appellee and ordered that he assume and pay all of the debts, obligations and liabilities in Schedule II. Appellant was awarded the property listed in Schedule III and was ordered to assume the debts, obligations and liabilities contained in Schedule IV. The respective parties were also awarded all personal property items presently in their individual possession which were not specified in the schedules.

Appellant’s sole point of error asserts that the trial court abused its discretion in dividing the community property of the parties. Appellant states that the total value of the scheduled property awarded to her is $7,595.31 as compared to $6,687.82 in scheduled property awarded to appellee. Appellant argues, however, that since these figures represent values of items as they existed at the time depositions were taken the figures require adjustment so as to take into consideration the property and values existing at the time of trial.

Appellant points to certain property which was either not listed in the schedules or which was not valued consisting of a $600.00 checking account, a $50.00 savings account, two life insurance policies, and a 1975 Cutlass Oldsmobile which were in ap-pellee’s possession at the time of trial. Appellant then brings to our attention two items awarded to her by the decree consisting of $800.00 from the Texas Employees Retirement System and a $270.00 savings account. Appellant maintains that she was forced to spend these funds for her support prior to trial and that these funds were no longer in existence when they were awarded to her by the decree. Appellant also argues that a $450.00 savings bond awarded to her by the decree was actually her separate property.

Therefore, appellant contends that she actually received community property in the sum of $6,075.31 as compared to $7,337.82 worth of community property awarded to appellee.

Appellant maintains that the trial court abused its discretion in not considering the preceding facts concerning the property mentioned. According to appellant, the trial court abused its discretion in awarding to appellee property with a value $1,262.41 greater than the property awarded to her. Additionally, appellant contends that this disparity in value shows abuse of discretion by the trial court when considered with the fact that appellee has an earning capacity nearly double that of appellant.

Let us assume, for the sake of argument, that the aforementioned contentions of appellant regarding the various items of property are well taken and that a difference of $1,262.41 in value of property awarded exists. In our opinion, appellant’s contentions are not sufficient to show an abuse of discretion by the trial court in dividing the property of the parties.

Tex. Family Code Ann. sec. 3.63 provides, “In a decree of divorce . . . the court shall order a division of 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.” In making a division of the property of the parties, divorce courts are given wide discretion and such discretion will not be disturbed on appeal unless it has been clearly abused. Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974).

Moreover, the trial court is not required to make an equal division of the property of divorced parties. Elrod v. Elrod, 517 S.W.2d 669 (Tex.Civ.App.-Corpus Christi 1974, no writ). The trial court’s ruling will not be interfered with unless it is shown to be manifestly unfair. Roberson v. Roberson, 420 S.W.2d 495 (Tex.Civ.App.-Houston [14th Dist.] 1967, writ ref’d n. r. e.). Various factors may be considered by the trial court in dividing the property of the parties such as the age and physical condition of the parties, their relative need for future support, fault in breaking up the marriage, benefits the innocent spouse would have received from a continuation of the marriage, the size of the estate and the relative abilities of the parties. Currie v. Currie, 518 S.W.2d 386 (Tex.Civ.App.-San Antonio 1974, error dismissed). Appellant’s point of error is overruled.

In further support of our decision herein, we must point out that where no findings of fact and conclusions of law were requested nor filed, the appellate court must presume that every disputed fact issue was found by the trial court in support of the judgment rendered. Washington v. Law, 519 S.W.2d 953 (Tex.Civ.App.-Houston [14th Dist.] 1975, writ ref’d n.r.e.).

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: EVANS, Justice.

license: Public Domain

text:
    MONEY PLACEMENT SERVICES, INC., Appellant, v. MERCANTILE BANK OF HOUSTON, Appellee.
    No. 16742.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 26, 1976.
    Rehearing Denied Sept. 30, 1976.

      Charles L. Black Aycock, Houston, for appellant.
    Charles N. Goldberg, Houston, for appel-lee.
   EVANS, Justice.

This is an appeal from a summary judgment rendered by the probate court, establishing the validity of an equitable lien asserted by the Mercantile Bank of Houston, as a secured creditor, against the proceeds of sale of certain real property which, pursuant to an order of the federal bankruptcy court, had been disbursed to the guardian of the estate of Victor J. Janak, a person of unsound mind. The principal question before this court is whether a judgment of the bankruptcy court entered on November 4, 1974, is res judicata of the Bank’s claim asserted in the probate court. This court holds that the claim is barred by the bankruptcy court’s judgment and that the cause must be reversed and remanded.

The Bank’s claim arises from a loan transaction initiated by letter from Victor J. Janak to Mr. Jim McBee, President of Mercantile Bank of Houston, dated October 6,1970. In this letter, Mr. Janak asked the Bank to consider a request on behalf of Sherwood Oaks Utilities, Inc. for a one-year loan in the amount of $385,000.00 to be secured by certain improved realty, including property in the Ridgeview Subdivision upon which a water plant was located. Subsequently, loans were made by the Bank to Sherwood Oaks for the total principal amount of $800,000.00, evidenced by a one-year promissory note in the amount of $385,000.00 dated October 30, 1970, and a one-year promissory note in the amount of $415,000.00 dated March 10, 1971, both of which were executed by Victor J. Janak individually and as President of Sherwood Oaks. Both notes were secured by deeds of trust, but the Ridgeview Subdivision property was not described as a part of the property being given as security.

On April 30, 1973, Sherwood Oaks Utilities, Inc. filed a Chapter XI petition in the United States District Court for the Southern District of Texas. On August 31, 1973, as debtor in possession, it filed an application to sell certain property to the City of Houston, including that which had been given as security for the bank’s loans and the improvements on the Ridgeview Subdivision property. In this application Sherwood Oaks recited that it was not the owner of the Ridgeview Subdivision realty, but that it did own the improvements on that property. Mercantile Bank filed a reply to this application, asserting that it had a first and valid lien on the property, including the improvements on the Ridgeview Subdivision realty, and that it was entitled to the proceeds of sale. On October 4, 1973, the bankruptcy court issued an order for the sale of all the property, including the improvements on the Ridgeview Subdivision realty which, the order recited, were to be sold for the cash sum of $92,059.00. The order directed that the debtor in possession hold the sale proceeds subject to the further determination by the court of the various liens and claims asserted against the property. On October 19, 1973, the probate court entered an order authorizing the guardian of the estate of Victor Janak to sell the Ridgeview Subdivision realty.

On December 28, 1973, both the bankruptcy court and the probate court entered orders confirming the sale of the Ridgeview Subdivision realty and improvements to the City of Houston. As a result of the sale in the bankruptcy court, the Bank received an approximate amount of $828,000.00 from the sale proceeds received by the debtor in possession. The bankruptcy court’s order directed the debtor, Sherwood Oaks, to place the sum of $92,059.00, representing the consideration for the improvements on the Ridgeview Subdivision property, in a separate, segregated account pending further orders of the court. The probate court’s order of confirmation recited that the estate was to receive a net sum of $7,488.36 for the Ridgeview Subdivision realty and $92,059.00 for the improvements, the award of the latter sum being dependent upon a determination of ownership by the federal bankruptcy court.

On September 6, 1974, the Bank filed a motion in the bankruptcy proceeding asserting, among other things, its first lien claim to the sum of $92,059.00, which represented the consideration for the sale of the improvements on the Ridgeview Subdivision realty. On September 30, 1974, the guardian filed motions seeking disbursements of the sale proceeds to the ward’s estate, asserting that the Bank had no lien of any kind or nature against the real property or improvements thereon, and contending that the Bank was not entitled to any portion of the proceeds arising from the sale of the improvements. The debtor in possession, Sherwood Oaks, responded on October 7, 1974, admitting the guardian’s claim of ownership of the realty, but contending that the debtor owned the improvements on the realty. Sherwood Oaks also filed its objection to the Bank’s motion for payment of the funds, denying that the Bank had a valid and existing first lien upon the property.

Upon this state of the record, the bankruptcy court entered its judgment on November 4,1974. In this judgment the bankruptcy court found that the matters set forth in the guardian’s motion were true, that the improvements on the Ridgeview realty constituted a fixture appurtenant to the realty, and that the guardian was entitled to recover from the debtor in possession the sum of $92,059.00 representing the escrowed sales proceeds of the improvements. In separate findings of fact and conclusions of law the bankruptcy court determined that the guardian’s ward was the legal and beneficial owner of the realty upon which the improvements were located; that the ward had advanced large sums of money to the debtor, a substantial portion of which had been used to pay for the improvements; that such advancements had not been paid by the debtor, for which the guardian had duly filed a claim in the bankruptcy proceedings; that the improvements could not be removed from the realty without doing substantial damage; that there was no evidence before the court that the ward had executed any document in favor of the Bank imposing a lien upon the realty or the improvements; that the ward had participated on behalf of the debtor in borrowing certain funds from the Bank for which certain liens and security interests were granted, and in connection with such borrowing, had executed and delivered to the Bank a letter outlining certain property proposed to be given as security for the loan; that the sale had been effected to the City of Houston upon the express condition that the sale proceeds, insofar as applicable to the realty, would be paid over to the guardian and, insofar as applicable to the improvements, would be held in escrow by the debtor pending determination of the ownership of such funds in the bankruptcy court; that the guardian had received the proceeds of the sale of the realty and that the escrowed sum of $92,059.00 represented the proceeds of the sale of the improvements. The court concluded, as a matter of law, that the ward was the owner in fee simple of the realty and also the improvements which constituted a fixture to the realty; that neither the debtor nor the Bank had been shown to own or have any title to or interest in the realty or the improvements, and that the guardian was entitled to have the escrowed sum paid over to the estate. The Bank gave notice of appeal from this judgment but the appeal was subsequently dismissed on its own motion.

Prior to the entry of the bankruptcy court’s judgment, the Bank, on October 23, 1974, had filed a claim in the probate court against the estate of Victor Janak, contending that it owned a secured claim in the total amount of $169,147.30 by virtue of the two promissory notes and Janak’s letter proposal, which writings, it alleged, established a valid lien on the Ridgeview Subdivision realty or upon the sale proceeds thereof. This claim was rejected by the guardian and the Bank thereafter filed this action in the probate court, asserting that it was entitled to have its claim established as a preferred debt and lien against the funds representing the sale proceeds of the property, and alternatively seeking to have the claim established as an unsecured claim against the estate. The guardian answered, denying that the Bank was entitled to a preferred lien because it had failed to perfect a security interest in the real property and therefore did not have a valid lien upon the realty or the improvements. It also affirmatively pleaded that the order of the bankruptcy court was res judicata of the matter. Money Placement Services, Inc., an unsecured creditor of the estate, filed a contest on behalf of the unsecured creditors against the Bank’s claim, asserting the defense of res judicata and seeking an award of reasonable attorney’s fees for benefiting the estate. The probate court then proceeded to consider the pleadings, affidavits and admissions on file in that cause, and rendered summary judgment in favor of the Bank, directing the guardian to recognize the Bank’s lien on the proceeds of sale of both the lot and improvements in the total amount of $99,547.36. Money Placement Services, Inc. has alone perfected this appeal from that summary judgment.

Every case must have a stopping point, a place where all controlling issues are finally decided by a court of competent jurisdiction. That point was reached in this case, as to the issues here involved, when the bankruptcy court entered its final judgment denying the validity of the Bank’s lien.

The bankruptcy court had jurisdiction to adjudicate the Bank’s claim that it held a valid lien against the Ridgeview Subdivision property. A bankruptcy court has summary jurisdiction to adjudicate claims to property in the actual or constructive possession of the debtor at the time the petition is filed, notwithstanding the fact that legal title may rest in a third party. Bankruptcy Act, Sec. 311; Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 60 S.Ct. 628, 84 L.Ed. 876 (1940); 9 Am.Jur.2d, Bankruptcy, Secs. 45, 47, pp. 83-88. Further, an adverse claimant of particular property can consent to the exercise of summary jurisdiction with respect to such property by filing a claim in the bankruptcy proceeding. Hyman v. McLendon, 140 F.2d 76, 78 (4th Cir. 1944), cert. den., 322 U.S. 739, 64 S.Ct. 1055, 88 L.Ed. 1572; 9 Am. Jur.2d, Bankruptcy, Secs. 28, 53, pp. 69, 95.

The Bank argues that the cause of action asserted in the bankruptcy court was not the same as the one alleged in the probate court because the bankruptcy court was precluded by statute from recognizing an equitable lien. It directs this court’s attention to Bankruptcy Act, Sec. 60(a)(6), which provides in part:

Recognition of equitable liens where available means of perfecting legal liens have not been employed is hereby declared to be contrary to the policy of this section.” (emphasis supplied)

Section 60 of the Bankruptcy Act has reference to the avoidance by the trustee in bankruptcy of preferential transfers of property. In the case at bar, there was no issue before the bankruptcy court as to the avoidance of a preferential transfer, and the bankruptcy court expressly determined that the debtor did not have title to either the realty or the improvements.

Equitable liens are recognized in bankruptcy. Collier on Bankruptcy, § 70.-62, 14th Ed. 1974; 9 Am.Jur.2d, § 996, pp. 746—747. Mutual mistake is a recognized basis for the imposition of an equitable lien, as where a party by executory contract indicates an intent to subject a particular property to a proposed debt, and then through mutual mistake the property is not adequately described in the final documents. See Collier on Bankruptcy, § 70.62, pp. 695-696; Walker v. Brown, 165 U.S. 654, 17 S.Ct. 453, 41 L.Ed. 865 (1896); Del Rio Bank & Trust Co. v. Cornell, 57 F.2d 142 (5th Cir. 1932).

The bankruptcy court had jurisdiction in equity to decree relief resulting from an error in a written contract of the debtor in possession, caused by mutual mistake, and the bankruptcy laws did not suspend its jurisdiction. Zartman v. First National Bank, 216 U.S. 134, 138, 30 S.Ct. 368, 54 L.Ed. 418 (1909).

The Bank’s theory of an equitable lien was based upon Janak’s letter proposal to the Bank and upon his response to request for admissions made in this case, indicating his understanding and intent that the Bank loan was to have been secured by a first lien on the Ridgeview Subdivision property. The Bank’s burden of establishing its case upon this theory of recovery was the same in the bankruptcy court as it was in the probate court. Although Ja-nak’s testimony was not available to the Bank at the time of the hearing before the bankruptcy court, due to his legal incompetency at that time, the absence of his testimony does not defeat the bankruptcy court’s jurisdiction or impair the binding effect of its judgment. The burden was upon the Bank in the bankruptcy proceeding to prove all matters required to sustain its claim. Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97, 100 (1894).

In the bankruptcy proceeding, the Bank asserted a first lien on the sale proceeds from the sale of the Ridgeview Subdivision improvements, basing its claim upon the assertion that the debtor in possession had intended to grant a lien on the improvements but failed to do so because of a mutual mistake. This claim was resisted by the guardian and by the debtor in possession. As a creditor participating in the proceeding, the Bank was bound by the final adjudication of the bankruptcy court that it had no valid lien against the property. 9 Am.Jur.2d, Bankruptcy, Sec. 507, p. 391; Miller v. Meinhard-Commercial Corp., 462 F.2d 358 (5th Cir. 1972).

The defense of res judicata was adequately raised by the affidavits and documentary exhibits filed in opposition to the Bank’s motion for summary judgment. See Darter v. Auto Salvage Systems, Inc., 470 S.W.2d 74 (Tex.Civ.App.-Waco 1971, no writ); Bachman Center Corp. v. Sale, 359 S.W.2d 290, 292 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.). The summary judgment proof showed the necessary identity of issues and parties to establish, as a matter of law, the defense of res judicata to the claim asserted by the Bank. Cantu v. Bage, 467 S.W.2d 680, 683 (Tex.Civ.App.—Beaumont 1971, no writ). Thus, the record reflects that the Bank was not entitled to summary judgment. Since the contestant, Money Placement Services,' Inc., did not file a motion for summary judgment, the proper ruling of this court is that the cause be reversed and remanded. Hinojosa v. Edgerton, 447 S.W.2d 670 (Tex.1969); Cowan v. Woodrum, 472 S.W.2d 749 (Tex.1971).

The judgment of this court is entered without prejudice to any claim which may be asserted in the probate court by Money Placement Services, Inc. for attorney’s fees as an expense of administration, on the basis of having preserved or protected the estate on behalf of a class of persons entitled to the fund in issue. See Kenbel v. Capital National Bank in Austin, 518 S.W.2d 795, 805 (Tex.1974).

Reversed and remanded.


author: ROBINSON, Justice.

text:
    HOWARD GAULT AND SON, INC., Appellant, v. FIRST NATIONAL BANK OF HEREFORD, Texas and Pitman Grain Company, Appellees.
    No. 8686.
    Court of Civil Appeals of Texas, Amarillo.
    Aug. 30, 1976.
    Rehearing Denied Sept. 27, 1976.
    Jack Hazlewood, Amarillo, for appellant.
    Witherspoon, Aikin, Langley, Woods & Gulley, D. Wesley Gulley, Andrew J. Shu-val, Hereford, for appellees.
   ROBINSON, Justice.

Defendant Pitman Grain Company is the maker of a check payable to “Thomas & Gault” drawn on its account in the Defendant First National Bank of Hereford, Texas. The defendant bank accepted the check and deposited it to the account of T. B. Thomas, Jr. upon its presentment with the endorsement

“Thomas & Gault
T. B. Thomas, Jr.”

Plaintiff, Howard Gault and Son, Inc., sued the bank for conversion of the check and, in the alternative, sued Pitman on the debt for which the check was given. A cause of action alleged by plaintiff corporation against Thomas was severed by the trial court. The trial court rendered judgment, on an instructed verdict, for Pitman and, on a jury verdict refusing to find that the bank acted in bad faith or that Thomas was indebted to plaintiff, for the bank. Plaintiff appeals. Affirmed.

Plaintiff alleges that it is a payee on the check and that the endorsement of the check by Thomas was ineffective to authorize payment by the bank.

The evidence shows without dispute that the “Gault” of “Thomas & Gault” is Howard Gault and Son, Inc. The check in question was given by Pitman in payment for milo delivered to Pitman elevators from the farming operation of T. B. Thomas, Jr. and Howard Gault and Son, Inc. The question, then, is whether the endorsement by Thomas was sufficient to authorize the bank to deposit the check to his account.

If plaintiff corporation and Thomas were partners in the farming operation, the bank was authorized to pay the check on Thomas’ endorsement. Art. 6132b, Sec. 9(1) Vernon’s Ann.Civ.St. The burden of proving partnership is on the parties asserting it, in this case, the bank and Pitman. First National Bank of Brownwood v. Chambers, 398 S.W.2d 313 (Tex.Civ.App., Eastland 1965, no writ). No jury issue was requested and none was submitted concerning either the nature of the relationship between Thomas and plaintiff or Thomas’ authority to endorse the check. We, therefore, first consider whether the evidence, as a matter of law, establishes that Howard Gault and Son, Inc. and Thomas were partners.

The written agreements between plaintiff and Thomas provide for farming certain land, part of it belonging to plaintiff and part of it belonging to J. C. Morrison and leased by Morrison to plaintiff and Thomas as lessees. The Morrison lease was for a cash rental. For the use of its land, plaintiff was to receive a crop rental, which in the case of milo was ⅛ of the crop. Plaintiff was to advance financing including a monthly draw for Thomas to be charged against his share of the net proceeds. Thomas was to furnish his equipment, including upkeep, and his own personal labor. All expenses except those for equipment were to be shared equally. After payment of the landlord’s share all of the “net revenues, rents, and proceeds” were to be divided equally between plaintiff and Thomas. The writing states that the parties are not engaged in the transaction as partners but as landlord and tenant. Nevertheless, both were tenants of the Morrison land and their agreement provides for a sharing by plaintiff and Thomas of both profits and potential losses, after payment of the stipulated rentals.

It is undisputed that Thomas had the right to obligate plaintiff for debts incurred in the line of farming, that a number of accounts with different businesses were carried in the name of “Thomas and Gault,” and that Pitman carried the account on its books as “Thomas & Gault” with the consent of or at the direction of Howard Gault and Son, Inc. Pitman had made previous payments by check payable to “Thomas & Gault.” Those checks were accepted by Howard Gault and Son, Inc. without complaint and negotiated with its endorsement and without the endorsement of T. B. Thomas, Jr. With regard to the nature of the payee on the Pitman checks, Howard Gault testified as follows:

“Q. And, the question though is, Mr. Gault, whether you contend that this check was payable to two separate people, both of whom had to endorse the check?
“A. It was payable to the account of two people.
“Q. All right.
“A. But, not to them personally.”

No Pitman check was ever endorsed by both plaintiff and Thomas.

With exceptions not relevant here, Article 6132b, Texas Uniform Partnership Act, defines a partnership as follows:

“Sec. 6. (1) A partnership is an association of two or more persons to carry on as co-owners a business for profit.”

Section 7, Article 6132b provides in part:

“Sec. 7. In determining whether a partnership exists, these rules shall apply:
* * * * * *
“(4) The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but no such inference shall be drawn if such profits were received in payment:
******
“(b) As wages of an employee or rent to a landlord,”
******

The statement in one of the agreements that the farming operation was not a partnership is not conclusive on the question of partnership. It is the intent to do the things that constitute a partnership that determines that the relationship exists between the parties, and if they intend to do a thing which in law constitutes a partnership, they are partners whether their expressed purpose was to create or avoid the relationship. Allison v. Campbell, 35 S.W.2d 776 (Tex.Civ.App., Waco 1931, writ dism’d); McCamey v. Hollister Oil Co., 241 S.W. 689 (Tex.Civ.App., Fort Worth) aff’d 115 Tex. 49, 274 S.W. 562 (1925).

After reviewing the undisputed evidence as it pertains to the agreements between plaintiff and Thomas, we conclude that, as a matter of law, their farming operation was a partnership. Our holding is disposi-tive of the appeal before us. Plaintiff’s contentions that the trial court erred in instructing a verdict for Pitman and in not granting plaintiff’s motion for judgment n.o.v. are overruled.

We have considered all of the evidence in the case and overrule appellant plaintiff’s contention that the jury finding that Thomas is not indebted to plaintiff is against the great weight and preponderance of the evidence.

We do not reach appellee defendants’ contentions that the finding that Thomas was not indebted to plaintiff necessarily, under the evidence adduced, means that plaintiff failed to show that it was damaged by the negotiation of the check nor do we reach the contention that a payee consisting of two last names joined by “&” appears to be a partnership and that a bank, in the absence of bad faith, is entitled to rely on its being such in cashing a check.

The judgment of the trial court is affirmed.


author: YOUNG, Justice.

text:
    Jamye Lou BORIACK, Appellant, v. Leroy Adolph BORIACK, Appellee.
    No. 1075.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1976.
    Rehearing Denied Sept. 30, 1976.

      Scott T. Cook, Harris, Cook, Browning & Barker, Corpus Christi, for appellant.
    Guy Allison, Allison & Garcia, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal from a judgment granting a divorce, awarding custody of three minor children, ordering payment of child support and dividing the marital estate. Jamye Lou Boriack instituted this divorce action against Doctor Leroy Adolph Bo-riack. Doctor Boriack filed a cross-action and Jamye Boriack subsequently took a nonsuit. The court proceeded to trial and judgment upon the doctor’s cross-action. Only the issue of custody was submitted to the jury. By agreement of the parties all other issues were resolved by the trial court without the aid of the jury. In accordance with the findings of the jury, Doctor Bo-riack was appointed managing conservator of the couple’s three sons. Jamye Boriack was ordered to make monthly child support payments.

In her first point of error, the appellant-wife contends that the trial court erred in admitting into evidence before the jury the written statement of the eldest son as to his custodial preference because the statement was hearsay and its admission was prejudicial. She argues that such a statement is only properly received into evidence when the issue of custody is before the trial judge. The appellee contends that under the Tex.Family Code Ann. § 14.07 a written statement of custodial preference is correctly received into evidence when the trier of fact on the issue of custody is either a judge or a jury. This appears to be a question of first impression.

At the time of trial the eldest child was above the age of fourteen. An affidavit expressing his preference that he be placed in the custody of his father was filed in the record of this case. The appellee offered the affidavit as evidence before the jury. The appellant objected to the evidence as hearsay. The objection was overruled and the affidavit was read to the jury and admitted into evidence. None of the children were called to testify by either party.

The Texas Family Code, Section 14.07 at the time of trial provided:

“(a) The best interest of the child shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to the child. If the child is 14 years of age or older, he may, by writing filed with the court, choose the managing conservator, subject to the approval of the court.
(b) In determining the best interest of the child, the court shall consider the circumstances of the parents.
(c) The court may interview the child in chambers to ascertain the child’s wishes as to his conservator. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made and to be made part of the record in the case.”

We first note that the language of subsection (a) provides that the writing is to be filed. There is no specific provision that the writing be received into evidence. We must assume, however, that the legislature contemplated that the writing would be received as evidence and considered by the fact finder. It would be a useless act to file the writing if it were not to be considered. A statute will not be construed to require the doing of a useless thing. Walker v. Roger, 99 S.W.2d 1034 (Tex.Civ.App.— Eastland 1936, writ dism’d). We must next determine by whom the evidence may be considered. The appellee contends that the term “the court” refers to both the judge and the jury. We disagree. When a word or a phrase is used in different parts of a statute, a clear meaning appearing in one instance will be attached to it elsewhere. Walker v. Roger, supra. It is clear that the term “the court” in subsection (c) refers to the trial judge. Thus, it is only the trial judge who should receive and consider the written choice in subsection (a).

The issue of custody was before a jury in Welch v. Welch, 369 S.W.2d 434 (Tex.Civ.App.-Dallas 1963), no writ). The trial court refused to admit evidence of the child’s statements of custodial preference. The Court of Civil Appeals held that the evidence was properly excluded as hearsay. And as we have indicated, this rule has not been changed by Section 14.07 of the Texas Family Code. There was, however, in our case other evidence about the eldest son’s relationship with and his attitude toward his mother indicating a preference for the father as custodian. We find, therefore, that the appellant has not shown that the error under complaint was calculated to and probably did cause the rendition of an improper judgment. The error is harmless. Rule 434, T.R.C.P. Point one is overruled.

In point two, the appellant contends that the court erred in awarding custody of the children because the court lacked jurisdiction of the suit affecting the parent-child relationship. Urging that the Tex.Family Code Ann. § 11.05(c) provides the exclusive, mandatory requirements for obtaining jurisdiction of a suit affecting the parent-child relationship, the appellant argues that the court was without jurisdiction to try the issue of custody because it had failed to comply with the mandates of the statute prior to trial. Thus, she says, any subsequent order of the court as to custody was void.

Each parent in the present case filed a petition in the course of the litigation which contained the assertion that no other court had continuing jurisdiction of the children. Both parties failed to attach to their respective petitions any verification from the State Department of Public Welfare that no other court had continuing jurisdiction of the children. The trial court, also failing to obtain the verification, proceeded to trial and thereafter on May 29, 1975, entered an order awarding custody of the children to Doctor Boriack. This judgment, however, was subsequently withdrawn when it was brought to the trial judge’s attention that the statement from the State Department of Public Welfare was not on file in the record of the case. On June 25, 1975, a statement from the Department as to each child was filed with the record of the case. The statements declared in part that:

“PURSUANT TO TITLE II OF THE TEXAS FAMILY CODE, YOU ARE ADVISED THAT ACCORDING TO THE CENTRAL RECORD FILE, THE COURT WHICH LAST HAD JURISDICTION OF THE ABOVE INDIVIDUAL WAS
COURT CDR
DOCKET NO. 743455
COUNTY NUECES”

On August 15, 1975 the court entered a second order which also awarded custody of the children to Doctor Boriack.

We note first that the issue presented by this point of error turns upon the application and interpretation of sections of the Texas Family Code which have been amended by legislation effective September 1, 1975. All of the pertinent events of the present case occurred prior to the effective date of the amendments. Our decision will thus be limited to the construction of the statutes as they existed before the amendments.

We do not agree that the Tex.Family Code Ann. § 11.05(c) contains the exclusive, mandatory requirements for obtaining jurisdiction of a suit affecting the parent-child relationship. That section provides:

“A court shall have jurisdiction over a suit affecting the parent-child relationship if it has been informed by the State Department of Public Welfare that the child has not been the subject of a suit affecting the parent-child relationship and the petition states that no other court has continuing jurisdiction over the child.”

To understand this particular section of the Code it is necessary to review the overall scheme of the Code and examine the concept of continuing jurisdiction. The Texas Family Code provides a scheme to maintain in one court the continuing jurisdiction of litigation which affects an individual child. Once a court acquires jurisdiction of a particular child and enters a final judgment, that court has continuing, exclusive jurisdiction over subsequent suits affecting that child. Tex.Family Code Ann. § 11.05(a); Curtis v. Gibbs, 511 S.W.2d 263, 266 (Tex.Sup.1974). The burden of recording data necessary to facilitate coordination between the courts is placed upon the State Department of Public Welfare. A copy of each order entered about a specific child affecting the parent-child relationship is transmitted to the Department for recording in the central record file and upon proper inquiry, the Department identifies the Court which last had jurisdiction of the child giving the docket number of the suit; or the Department informs the party making the inquiry that the child has not been the subject of a suit affecting the parent-child relationship. Tex.Family Code Ann. § 11.17. When a suit is filed affecting the parent-child relationship the court is required to request the Department to identify the court which last had jurisdiction of the child unless that information has already been obtained and attached to the petition. If another court is determined to have continuing jurisdiction, the court must dismiss the suit without prejudice. Tex. Family Code Ann. § 11.07.

Recognizing the possibility of errors which may occur in maintaining the central record file, the Code provides for the contingency in which the Department erroneously reports that the child has not been the subject of a suit affecting the parent-child relationship. If this contingency should occur and the petition states that no other court has continuing jurisdiction over the child, then the court in which the suit was filed shall have jurisdiction. Tex.Family Code Ann. § 11.05(c). The Code then provides that the court which did have continuing jurisdiction shall transfer the proceeding to the court which received the erroneous report. Tex.Family Code Ann. § 11.-06(d).

The statement from the Department in the present case reveals that according to the central record file the last court which entered an order affecting the parent-child relationship of these particular children was the Court of Domestic Relations of Nueces County, Texas. The docket number identifies the cause in which the order was entered. This particular docket number was assigned to the original divorce suit. The statement, therefore, simply reflects that the judgment which was entered on May 29, 1975, was recorded in the central record file. It does not indicate that the judgment was subsequently withdrawn, nor does it indicate that there were any previous orders entered by another court..

Obviously the parties in the present case failed to follow the procedure set out in the Code. We are not persuaded, however, that their actions have produced a result contrary to that which was intended by the drafters of the Code. The appellant does not contend, nor does the record indicate, that a court other than the Court of Domestic Relations of Nueces County, Texas has continuing jurisdiction of this suit. If it were determined that another court did have continuing jurisdiction of the children, then the proper procedure would have been for the appellant to seek transfer of the proceedings under Tex.Family Code Ann. § 11.06. We hold, therefore, that the appellant has not presented reversible error. See Sralla v. Sralla, 524 S.W.2d 557 (Tex.Civ.App.-San Antonio 1975, no writ). Point two is overruled.

The appellant contends, in her third point, that the trial court erred in refusing to make findings of fact and conclusions of law upon the issues of divorce, division of property, attorney’s fees and child support and that such failure was prejudicial to her right of appeal. Only the issue of custody was submitted to the jury in the present case. When at least one issue is submitted to a jury, the entire trial is to a jury within the purview of Rule 296, T.R.C.P. and the court is not required to make findings of fact and conclusions of law. Aubey v. Aubey, 264 S.W.2d 484 (Tex.Civ.App.-Beaumont 1954, no writ). This third point is overruled.

In her fourth and fifth points, the appellant attacks the court’s order that she pay $145.00 per month child support and contends that the order is not based on sufficient evidence, is contrary to the great weight and preponderance of the evidence and constitutes an abuse of discretion. The appellant is employed as a school teacher. Her aftér tax monthly income is approximately $522.00. The court awarded her the sum of $22,000.00 payable by the appellee in monthly installments of $300.00 as a portion of the property settlement. Her monthly disposable income is therefore approximately $822.00. The court also awarded her one of the parties’ three homes, two automobiles, shares of stock in two banks and other valuable property. On the other hand, Doctor Boriack earns approximately $40,000.00 per year. The appellant contends that she has a monthly house payment of $192.00 and a utility expense for the house in excess of $100.00. She does not attempt to show this Court what her other expenses would be. We have carefully reviewed all of the evidence presented by the record of this case and we are of the opinion that the court’s order of child support is supported by the evidence and is not against the great weight and preponderance of the evidence.

A court’s order of child support will not be disturbed unless the complaining party can show a clear abuse of discretion. Brito v. Brito, 346 S.W.2d 133 (Tex.Civ.App.—El Paso 1961, writ ref’d n.r.e.). A mother, as well as a father, has the duty to support her minor children. Tex.Family Code Ann. § 4.02 (1975); Anderson v. Anderson, 503 S.W.2d 124 (Tex.Civ.App.-Corpus Christi 1973, no writ). The amount a parent is required to pay in child support should be commensurate with his or her ability to pay, but should not be so great as to deny that party the necessary expenses of living. Anderson v. Anderson, supra; Kominczak v. Kominczak, 474 S.W.2d 749 (Tex.Civ.App.-Houston [1st Dist.] 1971, no writ). The appellant has not shown this Court that her financial situation is such that the order of $145.00 in child support is unreasonable.

The appellant also points out and appears to argue that the order of child support is in error because the appellee’s pleadings do not contain a request for child support. We do not agree. In matters concerning the support and custody of children the paramount concern of the court is the best interest of the children and the technical rules of pleading and practice are of little importance. Leithold v. Plass, 413 S.W.2d 698 (Tex.Sup.1967). Her fourth and fifth points are overruled.

In her final points of error (sixth and seventh) the appellant contends that the trial court abused its discretion in ordering an unequal division of the marital estate and in failing to award her attorneys’ fees. She contends that in the division of the estate Doctor Boriack received 56%, compared to her 44%, or about $22,-000.00 more was awarded to him than to her; that the circumstances of the parties will not justify such an unequal division. In support of her position she relies upon the case of Thomas v. Thomas, 525 S.W.2d 201 (Tex.Civ.App.-Houston [1st Dist.] 1975, no writ).

We agree with the appellant that the court in Thomas correctly announced the rule of law to be that an unequal division of the marital estate must be justified by the circumstances of the parties. In Thomas, the trial court awarded the wife the custody of the couple’s three children and divided the estate favoring the husband by 56% over her 44%. The Court of Civil Appeals reviewed the record and was unable to find circumstances which they considered would justify the unequal division. We are not faced with that obstacle in the present case. There is here the fact that Doctor Boriack was awarded the custody of the three children. This fact in itself would justify an unequal division favoring him. See Cockerham v. Cockerham, 527 S.W.2d 162, 173 (Tex.Sup.1975). We are not persuaded, however, that there has been an unequal division. The appellant has presented a rather detailed analysis of the division with schedules of assets and liabilities of the estate. She has included within the liabilities a sum in excess of $10,000.00 as her attorney’s fees. This inclusion assumes that the trial court found that this sum was a reasonable charge. She also has included within the assets a category which she labels as Property About Which There Is A Dispute. These assets total $63,871.00. Consequently we are unable to determine with exactitude the actual division of the estate. We hold, therefore, that the appellant has failed to show an abuse of discretion. Points six and seven are overruled.

The judgment of the trial court is affirmed.


author: NYE, Chief Justice.

text:
    CELANESE COATING COMPANY, DEVOE PAINT DIVISION, Appellant, v. Oscar SOLIZ, Appellee.
    No. 1098.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1976.
    Rehearing Denied Sept. 30, 1976.

      William H. Berry, Jr., Corpus Christi, for appellant.
    C. Edwin Prichard, Jr., County Atty., T. R. Bandy, Jr., Asst. County Atty., Robert W. Dupuy, Wood, Boykin & Wolter, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This is a garnishment case. On May 11, 1973, Celanese Coating Company, Devoe Paint Division, instituted garnishment proceedings against Oscar Soliz, District Clerk of Nueces County, Texas, as Garnishee, seeking funds held by him. The Bank of North Texas intervened and set up a claim to the funds in the possession of the Garnishee. A trial on the merits was had before the court without the aid of a jury. Judgment was rendered on August 29,1975, which quashed the writ of garnishment previously issued. Celanese hereinafter referred to as appellant-Garnishor, has duly perfected its appeal from that judgment.

This is one of several similar cases which have come before this Court whereby certain parties have, by writ of garnishment, attempted to obtain funds held by the District Clerk, the Honorable Oscar Soliz. See Red Henry Painting Company v. Bank of North Texas, 521 S.W.2d 339 (Tex.Civ.App.—Corpus Christi 1975, no writ); Bank of North Texas v. Red Henry Painting Company, 509 S.W.2d 444 (Tex.Civ.App.-Corpus Christi 1974, no writ).

The Bank of North Texas appellee is the same party that appeared in each of the above two cases. The Honorable Oscar Sol-iz, District Clerk, will be referred to as “Garnishee”. In the case at bar, the appellant-Garnishor (Celanese) in its writ of garnishment alleged that it had (in Cause No. 111,185-E on the docket of the District Court of Nueces County, Texas, styled “Cel-anese Coating Company, Devoe Paint Division, Intervenor, vs. J. B. Price and Sam Higbee, d/b/a Price Construction Company”), obtained a judgment against J. B. Price and Sam Higbee, d/b/a Price Construction Company, jointly and severally, for $5,905.45, plus six per cent (6%) interest thereon from date of judgment, attorney’s fees in the amount of $1,968.00, and court costs; that such judgment was final, valid, and subsisting and remains unsatisfied; that the Garnishee (District Clerk) is indebted to the judgment-defendants (Price & Higbee) by the reason of the fact that on April 10, 1973, a judgment was entered in favor of the judgment-defendants (Price & Higbee) and against Housing Authority of the City of Corpus Christi and Fort Worth Lloyds in Cause No. 111,185-E, (148th District Court of Nueces County) awarding to said judgment-defendants and the Bank of North Texas, the sum of $126,350.41, which judgment is now final; and that said sum has now been paid into the registry of the Court and Garnishee is the Custodian of said funds, and is indebted to the judgment-defendants, J. B. Price and Sam Higbee.

In response to the application for writ of garnishment, the Garnishee answered stating, in substance, that the Garnishee is indebted to Price and Higbee by reason of Cause No. 111,185-E in the amount of $126,350.41, plus some accrued interest; that these funds were paid into the registry of the Garnishee’s Court in satisfaction of a judgment signed April 10, 1973, providing, in part, as follows:

“. . . the said sums shall be held by the Clerk of this Court, subject to the following provisions of this judgment:
(a) The sum of $32,989.91 plus interest thereon at the rate of $4.39 per day from the 10th day of April, 1973, shall be paid by the Clerk of this Court to the Department of Treasury-Internal Revenue Service of the United States of America.
(b) The sum of $30,000.00 shall be paid by the Clerk of this Court to Stone & Berryman, Inc., and Michael Thompson.
(c) The sum of $16,850.00 shall be held by the Clerk in the registry of this Court, pending final judgments in Cause No. 117, 352-E, Celanese Coating Company, Devoe Paint Division vs. The Housing Authority of the City of Corpus Christi, et al, and Cause No. 117,345-E, Red Henry Painting Company vs. The Housing Authority of the City of Corpus Christi, et al, on the docket of this Court.
(d) The balance of said funds, including any balance remaining in the registry of this Court out of the fund held under paragraph (c) hereof, shall be paid by the Clerk of this Court to the Plaintiffs herein, J. B. Price and Sam Higbee, doing business as Price Construction Company, and Bank of North Texas, Hurst, Texas.

The appellant-Garnishor, on August 7, 1975, filed with the court its controverting affidavit in response to the Garnishee’s answer. In the affidavit, the Garnishor alleged among other things that the Garnishee is not indebted to the Bank because the Bank does not have a valid assignment of any interest in the judgment referred to in Cause No. 111,185-E, and such assignment is specifically prohibited by law; and that the funds which have been deposited into the registry of the Court are by law trust funds under Article 5472e, Tex.Rev. Civ.Stat.Ann. (Supp.) to be held to pay mechanics and materialmen pursuant to a contract which Price Construction Company had with the Housing Authority of the City of Corpus Christi to make certain repairs following Hurricane Celia.

On August 7, 1975, appellant-Garnishor filed with the court a set of interrogatories propounded to the Intervenor, Bank of North Texas. These were apparently served on the Bank’s attorney on August 6, 1975. Appellant in said interrogatories required the Bank to answer them on or before August 18, 1975. On August 15, 1975, the Bank-Intervenor objected to the interrogatories requesting that they be quashed asserting, among other things, that pursuant to Rule 168, T.R.C.P., they were entitled to at least fifteen (15) days in which to answer wherein the instructions in the interrogatories called for an answer within twelve days of their service; and that such interrogatories were untimely filed, the case having been on file for over two years. A hearing on the objections was set for August 20, 1975, at which time, the trial court sustained the objections. The appellant-Garnishor then filed a supplemental motion for continuance which was also denied. The case was then called for trial. The appellant-Garnishor announced “not ready”. On August 29, 1975, after hearing evidence, judgment was entered quashing the writ of garnishment.

Appellant first asserts that the trial court erred in failing to hold that said funds were being held in trust by the Garnishee as trustee for the use and benefit of the Gar-nishor as a materialman and in failing to enter judgment for the Garnishor in the amount of the judgment in Cause No. Ill, 185-E by virtue of Article 5472e, Tex.Rev. Civ.Stat.Ann.

The statute, Article 5472e, referred to by appellant provides in part as follows:

Section 1. All moneys or funds paid to a contractor or subcontractor or any officer, director or agent thereof, under a construction contract for the improvement of specific real property in this state, and all funds borrowed by a contractor, subcontractor, owner, or any officer, director or agent thereof, for the purpose of improving such real property which are secured in whole or in part by a lien on the specific property to be improved are hereby declared to be Trust Funds for the benefit of the artisans, laborers, mechanics, contractors, subcontractors or materialmen who may labor or furnish labor or material for the construction or repair of any house, building or improvement whatever upon such real property; provided, however, that moneys paid to a contractor or subcontractor or borrowed by a contractor, subcontractor, or owner may be used to pay reasonable overhead of said contractor, subcontractor, or owner, directly related to such construction contract. The contractor, subcontractor, owner, or any officer, director or agent thereof, receiving such payments or funds, or having control or direction of same, is hereby made and constituted a Trustee of such funds so received or under his control or direction.” (Emphasis supplied.)

The trial court found that the final judgment entered in Cause No. 111,185-E in favor of Intervenor (Bank) and Price Construction Company clearly determined the issue of the Intervenor’s interest in said funds and established that said funds are jointly owned by Intervenor and Price Construction Company. Among its conclusions of law, the trial court held that the Gar-nishor (Celanese) had the burden of proving its entitlement to the benefits and protection of Article 5472e which it did not do. The Garnishor had the burden of showing that the money recovered by Price Construction Company and the Bank was recovered “under a construction contract for the improvement of specific real property in this state”, and that it was within the class of persons protected by the statute. Red Henry Painting Company v. Bank of North Texas, supra; Panhandle Bank & Trust Company v. Graybar Electric Company, Inc., 492 S.W.2d 76 (Tex.Civ.App.—Amarillo 1973, writ ref’d n. r. e.). See Exhibit 1 (Second Amended Original Petition in Cause No. 111, 185-E, filed by J. B. Price and Sam Higbee, d/b/a Price Construction Company, and the Bank of North Texas, plaintiffs, against Housing Authority of the City of Corpus Christi and Fort Worth Lloyds Insurance Company, defendants) offered and admitted into evidence shows that the plaintiffs therein sought recovery of money damages for breach of a written contract, or, in the alternative, on quantum meruit, or implied contract in law. The judgment entered in Cause No. 111, 185-E on April 10, 1973, in favor of Price and Higbee and the Bank, of which a copy was also admitted into evidence, does not state the ground on which it was rendered, whether on breach of contract, or quantum meruit, nor is such ascertainable from the judgment.

The Honorable Richard B. Stone, the attorney for the plaintiffs in Cause No. Ill, 185-E, testified that the reason the judgment was made payable jointly was because the Bank had advanced funds (interim construction funds) to Price and Higbee for the performance of this contract; and the Bank of North Texas also had an assignment of these funds. He further testified that the case went to trial on three different theories and in his opinion the evidence would have sustained any one or all of the theories. As this Court held in Red Henry Painting Company v. Bank of North Texas, the statute (Article 5472e) does not apply to a recovery based on quantum meruit. Under the state of this record, it is uncertain whether the judgment in Cause No. Ill, 185—E was based on a breach of contract or quantum meruit.

It is also questionable whether the funds in the hands of the Garnishee (District Clerk) referred to the improvement of specific real property in this State. See Red Henry Painting Company v. Bank of North Texas, supra, at p. 343.

The appellant-Garnishor, however, attempted by oral testimony to introduce into evidence the contents of a certain written insurance policy referred to in the subject contract, which allegedly described the specific real property to be improved. The Bank objected stating that the introduction of such testimony violated the “Best Evidence Rule”. The trial court sustained the objection and excluded the evidence.

It appears, however, that at the close of the evidence, the trial court reversed its rulings as to the exclusion of the above evidence, stating:

“. . . The Court in reviewing the matters involved in the bills of exception: although believing that some of them involve pure hearsay and the Court intending to rely on its ability to be able to weigh properly the evidence, and also realizing that a judgment cannot be based on inadmissible testimony for the sake of having fully before it all these matters, the Court is going to reverse its rulings and admit all of the evidence excluded and objected to by way of the garnishor’s bills of exception.”

It is evident that the trial court in rendering its judgment did not consider the evidence relating to the contents of the insurance policy where such clearly violated the “Best Evidence Rule”. Where inquiry is being made as to the contents of a material document, the only competent evidence of such contents is the document itself, unless the document be first shown to be unavailable as being lost or destroyed or absent from the jurisdiction without fault on the part of the person offering the evidence, or as being in the adversary’s possession where he has been notified to produce it, or as being a part of the public records, in all which cases other evidence may be resorted to. C. McCormick & Ray, Texas Evidence § 1562, 1563 (2d ed. 1956).

In the case at bar, the original document (insurance policy) was neither produced or placed in evidence nor was its absence or failure to produce accounted for. Therefore, this evidence allegedly describing the specific real property to be improved, was inadmissible and was evidently not considered by the trial court in rendering its judgment quashing the writ of garnishment. See Panhandle & Santa Fe Ry. Co. v. McDonald, 227 S.W.2d 601 (Tex.Civ.App.—Eastland 1950, writ ref’d); Fechtel v. Gatewood, 470 S.W.2d 293 (Tex.Civ.App.—Tyler 1971, writ ref’d n. r. e.); Kemp v. Harrison, 431 S.W.2d 900 (Tex.Civ.App.— Houston [14th Dist.] 1968, writ ref’d n. r. e.).

The appellant-Garnishor failed to satisfy its burden of showing its entitlement to the benefits and protection of Article 5472e. Appellant’s points of error 1, 2 and 3 are overruled.

The appellant-Garnishor in its points of error 4-6 asserts that the trial court erred in its judgment by granting the funds to Intervenor (Bank of North Texas) as there was no evidence or insufficient evidence presented that the Bank was entitled to the funds and that the Bank did not meet its burden of proof that it was entitled to receive the funds held by the Garnishee.

In Red Henry Painting Company v. Bank of North Texas, supra, at p. 342, we stated: “Since all monies recovered by Price and Higbee were jointly owned by them and by the Bank, appellant, the garnishor, had the burden of proving what portion, if any, of the funds in the hands of the garnishee was severally owing to the judgment debtors (Price and Higbee, d/b/a Price Construction Company) only.” See Red Henry Painting Company v. Bank of North Texas, 521 S.W.2d 339, 343 (Tex.Civ.App.—Corpus Christi 1975, no writ); Gottesman v. Toubin, 353 S.W.2d 294 (Tex.Civ.App.-Houston 1962, no writ); Nesbit v. Dallas Bank & Trust Co., 82 S.W.2d 692 (Tex.Civ.App.—Dallas 1935, no writ); Stallings v. Jim Handley, Inc., 181 S.W.2d 814 (Tex.Civ.App.-Galveston 1944, no writ). The appellant in its brief states that this Court in the Red Henry case made an unwarranted, unproven assumption that the monies recovered by Price & Higbee, d/b/a Price Construction Company were jointly owned by them and the Bank and in our “dicta” wrongfully put the burden of proof on Garnishor to prove the portion of the funds belonging to Price Construction Company only. This argument is without merit.

The judgment entered in Cause No. Ill, 185-E, was a joint recovery whereby the plaintiffs J. B. Price and Sam Higbee, d/b/a Price Construction Company and the Bank of North Texas, recovered from The Housing Authority and Fort Worth Lloyds the sum of $122,989.82. Additionally in its application for writ of garnishment, the Garnishor (appellant herein) admitted that the funds held by the Garnishee were funds which were jointly owned by Price and Hig-bee (judgment debtors) and the Bank.

With respect to the placement of the burden on the appellant-Garnishor by this Court to prove what portion of the funds held by the Garnishee belong to the judgment-debtors (Price & Higbee) only, appellant-Garnishor argues that it was the Bank’s burden of proof to show that it was entitled to receive all of the funds held by the Garnishee (District Clerk) citing as its authorities: Panhandle Bank & Trust Company v. Graybar Electric Company, Inc., 492 S.W.2d 76 (Tex.Civ.App.-Amarillo 1973, writ ref’d n. r. e.) and Corpus Christi Bank and Trust v. Smith, 525 S.W.2d 501 (Tex.Sup.1975). We disagree. Both of these cases were interpleader actions and unlike the case before us, each claimant in an interpleader action has the burden of proving their claims and relative priority as to all other claimants. See Rule 43, T.R.C.P.; Panhandle Bank & Trust Company v. Gray-bar Electric Company, Inc., supra. Since all the monies recovered by Price Construction Company and the Bank were jointly owned by them, the Garnishor had the burden of proving what portion, if any, of the funds in the hands of the Garnishee was severally owing to the judgment debtors (Price & Higbee, d/b/a Price Construction Company) only. Bed Henry Painting Company v. Bank of North Texas, supra; Gottesman v. Toubin, supra; Nesbit v. Dallas Bank & Trust Co., supra; Stallings v. Jim Handley, Inc., supra; 27 Tex.Jur.2d Garnishment § 121. We hold that the appellant-Garnish- or has failed to show what funds, in the hands of the Garnishee (District Clerk) belonged to the judgment debtors only, therefore failing to sustain its burden of proof. Appellant’s points of error 4, 5 and 6 are overruled.

The appellant in its points of error 6 and 7 complains of the trial court’s action in denying its first and supplemental motion for continuance asserting that the trial court abused its discretion in doing so. Although the trial court denied appellant’s first motion for continuance, it did recess the trial for two weeks until August 20, 1975.

The matter of granting a continuance rests with the sound discretion of the trial judge and an order denying or granting a motion will not be disturbed on appeal unless there was an abuse of discretion. Sherrill v. Estate of Plumley, 514 S.W.2d 286 (Tex.Civ.App.-Houston [1st Dist.] 1974, writ ref’d n. r. e.); Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.Sup.1964); J. C. Penney Company v. Duran, 479 S.W.2d 374 (Tex.Civ.App.-San Antonio 1972, writ ref’d n. r. e.). We have reviewed the entire record and find no showing of an abuse of discretion by the trial judge. Appellant’s points of error 7 and 8 are overruled.

Finally, the appellant asserts in its points of error 9 and 10 that the trial court erred and abused its discretion in refusing to require appellee (Bank) to answer the interrogatories propounded to it and in granting Intervenor’s motion to quash said interrogatories.

On August 6, 1975, interrogatories were served on counsel for Intervenor Bank reciting the answer day on August 18, 1975. This allowed appellee only twelve (12) days instead of fifteen (15) days in which to answer. Rule 168, T.R.C.P. The Bank filed objections to the Garnishor’s interrogatories on August 15, 1975, and set a hearing on August 20, 1975, the same date the trial court had ordered the parties back for trial. In its objections to the interrogatories, the Bank stated that it was entitled to at least fifteen (15) days from the date of service to answer the same; that many of the interrogatories inquire of matters of which the Bank had no knowledge and that such matters are wholly irrelevant to the issues in this case; that the interrogatories were served with the purpose of causing the Bank to expend unnecessary time and money to answer them and claimed they are an inconvenience to the Bank, its officers, employees and counsel; and that to now require the Bank to answer them after this case has been on file for over two years would cast upon it an unreasonable and unnecessary burden. The trial court granted the Bank’s motion to quash these interrogatories.

Rule 168, T.R.C.P. provides in part as follows:

“ . . . The party upon whom the interrogatories have been served shall serve a copy of the answers on the party submitting the interrogatories within the time specified by the party serving the interrogatories which specified time shall not be less than 15 days after the service of the interrogatories, unless the court, on motion and notice and for good cause shown, enlarges or shortens the time.'’ (Emphasis supplied.)

The Bank was not allowed the minimum time specified in the rule in which to answer. This alone was sufficient for the trial court to quash the interrogatories. The trial court has considerable discretion in such cases. The appellant has failed to show an abuse of such discretion. It is also clear that had the Bank been allowed its full fifteen (15) days to which it was entitled, the date for answering would have fallen on the last day of the trial, therefore extending pre-trial proceedings into the time of trial. Such is not allowed. See American Central Insurance Co. v. Texhoma Stores, Inc., 401 S.W.2d 593 (Tex.Sup.1966); Hankins v. Haffa, 469 S.W.2d 733 (Tex.Civ.App.-Amarillo 1971, no writ); Ana-Log, Inc. v. City of Tyler, 520 S.W.2d 819 (Tex.Civ.App.-Tyler 1975, no writ). Compare: Bynum v. Shatto, 514 S.W.2d 808 (Tex.Civ.App.-Corpus Christi 1974, writ ref’d n. r. e.). Appellant’s points of error 9 and 10 are overruled.

The judgment of the trial court is AFFIRMED.


author: AKIN, Justice.

text:
    EAST TEXAS MANAGEMENT CORPORATION, Appellant, v. F. M. CROWELL et al., Appellees.
    No. 19077.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 1, 1976.
    Rehearing Denied Sept. 30, 1976.

      Roger F. Thomson, Smith, Schutze, Sand-erson & Boudreaux, Dallas, for appellant.
    Ben Monning, Jr., Wynne & Wynne, Wills Point, for appellees.
   AKIN, Justice.

This is an appeal by East Texas Management Corporation from a temporary injunction prohibiting it from charging its customers for water under a new rate schedule which became effective on June 28, 1976. Plaintiffs F.. M. Crowell, Reba Baxter Stewart and H. E. Morrow, three alleged customers of defendant, sought and obtained this temporary injunction as representatives of a class designated as customers of the defendant. The defendant is engaged in the business of selling and distributing water in the Lake Tawakoni area of Van Zandt County. On June 28, 1976, the defendant announced a rate increase which plaintiffs contend is unreasonable. Suit was filed on July 30, 1976, and hearing had on August 6,1976, on their application for a temporary injunction. After the hearing, the trial court on August 10, 1976, entered its order granting an injunction prohibiting the defendant from charging rates in excess of those charged prior to June 28. On August 12, 1976, the transcript was filed with this court. We advanced this cause to August 23, 1976, for submission. On August 31, we reversed the order of the trial court and dissolved the injunction. We now announce the reasons for that decision. We dissolved the injunction on the ground that there is no evidence in the record to support the trial court’s finding that the rates announced by defendant on June 28 were unreasonable.

The plaintiffs tendered three witnesses. The first, Mrs. C. J. Lee, testified that she was an unmetered customer served by defendant and that prior to June 28 she paid a flat rate of $12.50. According to a letter from defendant to this witness announcing new rates the flat rate would be $18.50; however, this letter also stated that meters would be installed at all locations “as soon as practical” and that the metered rate was $16 for the first 2,500 gallons of water used and $1.50 for each additional 1,000 gallons. The second witness, Mrs. Ella Mudd, a metered customer since 1971, testified that at the time of the hearing the minimum amount for a metered customer was $22.50. Apparently the witness did not realize that the rate schedule set forth a $6.50 credit. No testimony was elicited concerning the minimum amount charged prior to June 28. We conclude that this evidence failed to give the trial court a basis for determining whether the new rates were unreasonable.

The third witness, Mr. Jack Lester, president of the McBee Water Supply Corporation, testified that he thought that any rate over $8.75 for 2,000 gallons, which his company charged, would be unreasonable if the utility had a similar debt structure to McBee. He admitted, however, that his company qualified and obtained a loan through the Farm Home Administration for forty years at a rate of five and one-half percent and that he had no knowledge of whether defendant was operating under a similarly long-term, low-interest rate loan. He also testified that, in order to determine a reasonable rate, it was necessary to consider operating expenses, debt service, reserves, and a fair rate of profit. He admitted that he had no knowledge of the defendant’s expenses, debt service or return on invested capital but “assumed” that they were the same as MeBee. There was no such evidence. We conclude that this testimony is not competent evidence of whether the rates charged by defendant after June 28 were unreasonable because his opinion was based upon an assumption rather than knowledge of facts necessary to make this determination. Consequently, this speculative testimony should have been excluded. Calhoun v. United States Fire Insurance Co., 489 S.W.2d 359, 360 (Tex.Civ.App.—Amarillo 1972, writ ref’d n.r.e.).

To be entitled to a temporary injunction a plaintiff must establish by competent evidence a probable right of recovery. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961). Therefore, a trial court abuses its discretion when it issues a writ when the evidence fails to furnish any reasonable basis for concluding that the applicant has a probable right of recovery. Here the question of whether plaintiffs established a probable right of recovery turns on the crucial question of whether the rates announced on June 28 were unreasonable. This determination cannot be made without evidence of the defendant’s financial situation.

Plaintiffs argue that this case is controlled by the decision of the supreme court in State v. Southwestern Bell Telephone Co., 526 S.W.2d 526 (Tex.1975). We cannot agree because that case held that a court may determine whether rates were unreasonable absent a regulatory statute and had discretion, therefore, to maintain the status quo pending a final hearing. It did not hold that a trial court had discretion to grant an injunction in a utility rate dispute without hearing evidence to establish a probable right of recovery. Consequently, we conclude that this case does not support plaintiff’s position.

The order provides that the defendant may not charge rates in excess of those charged before June 28. Plaintiff’s principal contention is that the new rates are unreasonable because of a significant increase over the prior rates. We cannot say that a flat rate increase from $12.50 to $18.50 was in itself sufficient to support a finding that the flat rate increase was unreasonable. Since there was no evidence of the increase for metered customers, the trial court had no basis for its order. This is particularly true here because there was no evidence of the total number of customers or of the number of flat rate and metered customers. A court may not establish a particular rate, but may only enjoin an unreasonable rate. State v. Southwestern Bell Telephone Co., supra at 533. The trial court here set the rates as they existed prior to June 28 despite a lack of evidence of those rates.

We do not hold that in such a case as this the trial court cannot grant injunctive relief pending final trial without full development of the facts necessary to establish with precision what rate of return the rates in question would produce on the fair value of the investment used in serving the public. We hold only that there must be some evidence supporting an inference that the rates to be restrained are unreasonable. We find no such evidence here.

Order reversed and temporary injunction dissolved.


author: HALL, Justice.

text:
    John L. McCRAY, Appellant, v. PEOPLES NATIONAL BANK OF TYLER, Independent Executor of the Estate of A. O. Phillips, Deceased, Appellee.
    No. 5577.
    Court of Civil Appeals of Texas, Waco.
    Sept. 2, 1976.
    Rehearing Denied Sept. 30, 1976.

      Dean Carlton, Dallas, for appellant.
    Hubert D. Johnson, Johnson & Cravens, Dallas, for appellee.
   HALL, Justice.

The appellant brought this suit to require an assignment to him from the Estate of A. 0. Phillips, Deceased, of a ¾6⅛ overriding royalty interest in certain producing oil and gas leases now held by the Estate. He alleged that he acquired the leases for Phillips and the Estate and that he is entitled to the interest he seeks under the terms of his oral contracts of employment with them. He also pleaded for recovery on the theory of a constructive trust in his favor. Among other défenses, the Estate pleaded the provisions of the Texas Statute of Frauds.

Trial was to a jury which made these findings in answers to the only issues submitted to it: (1) Phillips and the appellant agreed that the appellant’s compensation for his employment would include an assignment of a ½6⅛ overriding royalty interest in oil and gas leases acquired by Phillips through the appellant’s efforts; (2) the assignment would be made upon completion of a producing well on a lease; (3) the Estate continued the appellant’s employment on terms the same as those he made with Phillips; and (4) the leases in question were acquired by Phillips and the Estate through the appellant’s efforts.

The record shows without dispute the agreements sued upon by the appellant are oral, as pleaded by him. The Estate moved for judgment notwithstanding the verdict on the ground the agreements are not enforceable because they violate the Statute of Frauds. The trial court granted the motion and rendered a take-nothing judgment against the appellant. We affirm this ruling.

The appellant is a consulting professional engineer and geologist. He began working for Mr. Phillips in 1953. He was at all times a regular, full-time employee. He testified, “Fundamentally, I supervised the drilling and completion and testing of wildcat wells. I was instrumental in leasing block areas of interest where we might pursue the acquiring of leases and drilling of wells and I supervised what production we obtained.” The appellant would locate leases and arrange for their purchase, but they were actually purchased by Phillips in Phillips’s name and paid for with his money. Others were also securing leases for Phillips. Phillips died in September, 1972, and the appellant simply continued with the same basic duties on behalf of the Estate through 1973. For these services, the appellant was paid a salary and all job-related expenses, and was furnished a car with its expenses paid for both business and private use. Additionally, if production resulted on a lease, Phillips would assign a ½6⅛ overriding royalty interest to the appellant. Losses resulting from the dealings in the leases were borne by Phillips. All but three of the leases in question were acquired while Phillips was living, but production did not begin on any of them until after his death. At all pertinent times the appellant’s salary with Phillips, and then the Estate, ranged from $1,150.00 to $1,333.00 per month.

In its relevant parts, the Statute of Frauds (Section 26.01, V.T.C.A., Bus. & C.) provides that a promise or agreement to pay a commission for the sale or purchase of an oil or gas mining lease, or an oil or gas royalty, or minerals, or a mineral interest, is not enforceable unless the promise or agreement is in writing and signed by the person to be charged with it.

The assignments sought by the appellant are plainly compensation for services rendered by him toward purchase of mineral leases by Phillips. The oral agreements upon which they are based fall squarely within the Statute of Frauds and are unenforceable unless there are circumstances which exclude the operation of the Statute. Great Western Drilling Company v. Simmons, 157 Tex. 268, 302 S.W.2d 400, 404 (1957); Cowan v. F.H.E. Oil Co., 169 S.W.2d 994, 995 (Tex.Civ.App.-Fort Worth, 1943, writ ref.); Kesler v. Casebolt, 278 S.W.2d 325, 326 (Tex.Civ.App.-Amarillo 1954, no writ hist.).

The appellant contends there are two reasons why the Statute is inapplicable. First, he says the Statute does not apply to an employer-employee relationship. He cites no authorities supporting this hypothesis and we have found none. The Statute does not expressly or impliedly exclude relationships of this nature from its operation. In Great Western Drilling Company v. Simmons, supra, the Supreme Court, although concerned with the rights of an independent contractor, expressed the thought that the Statute “would bar an action eVen of a mere employee where the contract of employment is oral.” There is no compelling reason why it should not. We hold it does.

Secondly, the appellant contends he is entitled to recover under the pleaded theory of a constructive trust. The circumstances necessary for the imposition of a constructive trust are the breach of a confidential relationship by the fiduciary with resulting unjust enrichment of the fiduciary at the expense of the cestui que trust. Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex. Sup., 1963); Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401, 405 (1960). Without further detailing of the evidence, we hold it does not conclusively establish those facts. It shows an employer-employee relationship between parties engaged in relatively specialized work and the confidence ordinarily reposed in that relationship, but it does not conclusively establish that Phillips or the Estate were the appellant’s fiduciaries. It infers the overriding royalty interests promised to the appellant were of the nature of bonus compensation, and it does not conclusively establish the services he rendered for Phillips and the Estate actually exceeded the value of his salary, expenses and car. It shows the reliance by one party upon the oral promise of another to perform a contract which the law makes unenforceable, and a breach of that promise, but these facts alone do not conclusively create a confidential relationship nor establish a constructive trust. Consolidated Gas & Equipment Co. v. Thompson, 405 S.W.2d 333, 336 (Tex.Sup., 1966); Pennington v. Bennett, 436 S.W.2d 182, 183-184 (Tex.Civ.App.-Dallas 1968, writ ref., n. r. e.).

Because the appellant failed to seek and secure jury findings supporting his theory of a constructive trust, this ground of recovery has been waived. Rule 279, Vernon’s Tex.Rules Civ.Proc.

Finally, the appellant claims the trial court erred when it excluded a part of his proof as being in violation of the dead man’s statute. The appellant’s bill of exception shows this proof relates solely to the substance of his oral agreement with Mr. Phillips. The jury’s findings were favorable to the appellant on every element of the agreement pleaded by him. If there was error in the court’s ruling, it was harmless.

The judgment is affirmed.