author: NYE, Chief Justice.

text:
    SOUTH PADRE DEVELOPMENT COMPANY, INC., et al., Appellants, v. TEXAS COMMERCE BANK NATIONAL ASSOCIATION et al., Appellees. On appeal from the 107th District Court of Cameron County, Texas. TEXAS COMMERCE BANK NATIONAL ASSOCIATION et al., Appellants, v. SOUTH PADRE DEVELOPMENT COMPANY, INC., et al., Appellees.
    Nos. 1067, 1068.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 17, 1976.

      Rollins M. Koppel, Stiernberg, Skaggs & Koppel, Harlingen, for South Padre Development Co., Inc.
    John C. Nabors, Liddell, Sapp, Zivley & Brown, Houston, for Texas Commerce Bank National Ass’n.
   OPINION

NYE, Chief Justice.

The two appeals involved in this case come from the denial of a temporary in-, junction and plea in abatement and from overruling a plea of privilege. The appellant Texas Commerce Bank National Association hereinafter called Bank is appealing from the trial court’s order overruling its plea of privilege to be sued in Harris County, Texas, and from the denial of its plea in abatement. South Padre Development Company hereinafter called Development Co. is appealing from the trial court’s order denying its application for temporary injunction. Since the two appeals involve the same parties, the same court, and some of the same facts, we are writing this one Opinion covering both appeals.

Most of the facts are undisputed. In June of 1974, the Bank made a real estate loan to Sams-Porter Corporation in the amount of $2.5 million dollars. This loan to Sams-Porter Corp. was in effect a loan to the Development Co., its parent corporation, for the purchase of Sams-Porter Corp. The principal assets of Sams-Porter Corp. were 1,700 acres of land in Cameron County, the stock in Cameron County Water Improvement District No. 17 and 1,500 acres of Class A water rights in Cameron County, Texas. The loan was secured by various deeds of trust and security agreements covering properties located in Cameron County, Texas, naming Lloyd T. Bolton, Trustee for the benefit of the Bank. In addition, the note to Sams-Porter Corp. was secured by the guarantee of its parent corporation, Development Co. Shortly after the loan was made, Sams-Porter Corp. was merged into Development Co. and Sams-Porter Corp. ceased its corporate existence. The obligation of Development Co. was due and payable to the Bank one year from date.

Development Co. arranged for a take-out commitment from the American General Life Insurance Company whereby the Insurance Co. would satisfy the Development Co.’s obligation to the Bank by converting the same into a long term note (10 years). However, litigation between the Development Co. and the Insurance Co. erupted causing the take-out commitment to go by the wayside leaving the Development Co.’s $2.5 million debt due on June 25, 1975, unpaid. This suit was brought in the 107th District Court of Cameron County, Texas, by the Development Co. against the Insurance Co. and various other defendants growing out of various business transactions unrelated to the loan made by the Bank to the Development Co.

On August 9, 1975, the Bank posted its notice of foreclosure sale on the property securing the Development Co.’s obligation to the Bank. Thereafter on August 28, 1975, the Bank instituted suit in the 164th District Court of Harris County, Texas, against the Development Co. and Sams-Por-ter Corp. on its indebtedness of $2,373,-942.70, plus interest and for attorneys’ fees in the amount of $250,000.00. The suit also asked for foreclosure of the liens.

After the Bank had filed suit against the Development Co. and Sams-Porter Corp., the Development Co. filed its third amended original petition joining the Bank in the existing litigation in the 107th District Court of Cameron County, Texas. In this suit, the Development Co. alleged that a conspiracy existed between the Bank and Insurance Co. whereby it was alleged that they conspired to cause the Development Co. to default on its obligation. The suit sought injunctive relief against the Bank restraining them from conducting the purported sale of the property involved. The Judge of the 107th District Court, in an ex parte hearing, issued a temporary restraining order restraining the trustee and Bank from foreclosing upon or selling the land and properties in question until a hearing on the temporary injunction could be had. On September 3, 1975, the Bank filed its plea of privilege and subject to such plea, filed its plea in abatement. The Bank in its plea in abatement alleged that its suit filed in Harris County against the Development Co. and Sams-Porter Corp. was filed prior to the Development Co.’s third amended original petition and because its suit involved essentially the same parties and debt as that before the Cameron District Court, the cause of action in the Cameron County District Court should be dismissed as to the Bank, or in the alternative, it should be abated until the prior action in the Harris County District Court was finally disposed of.

The Development Co. and other plaintiffs filed their controverting affidavits alleging that venue was proper in Cameron County because, among other things, their cause of action involves an alleged violation of the usury laws and that such laws provide for venue in Cameron County.

On October 2, 1975, the Judge of the Cameron County District Court denied the plaintiff’s application for temporary injunction against the Bank and trustee because the court was without jurisdiction to issue a temporary injunction against a banking association because of the prohibition contained in 12 U.S.C., § 91. The court then held that venue over the action was manda-torily in Cameron County and that the previously filed suit by the Bank in Harris County District Court did not constitute a reason for abating this suit. The trial court overruled the Bank’s plea of privilege, denied its plea in abatement and motion to dismiss and refused to issue a temporary injunction.

Following the court’s ruling, the Bank held its sale on October 7, 1975, foreclosing its liens on the real property securing its indebtedness. The Development Co. and Bank are each appealing from the above judgment of the Cameron County District Court. The two appeals which were submitted at different times are considered in this Opinion.

With respect to the Development Co.’s appeal, it brings forward one point of error that being that the trial court erred in denying the Development Co. the right to be heard at a meaningful time and in a meaningful manner by finding that there was no jurisdiction to issue a temporary injunction against the Bank because of the prohibition in 12 U.S.C., § 91.

The Bank now asserts here that the question of whether the trial court had jurisdiction vel non to temporarily enjoin the Bank from its foreclosure sale is now moot, since it is undisputed that the Bank has held its foreclosure sale, has foreclosed its liens securing the indebtedness and has taken possession of the property.

Since the sale was not wrongfully conducted, and there was no court order restraining the trustee or the Bank from conducting the sale, the Bank was free to proceed with the sale which now renders the Development Co.’s appeal from that portion of the trial court’s order moot. Service Finance Corporation v. Grote, 133 Tex. 606, 131 S.W.2d 93 (Tex.Comm’n App. —1939, opinion adopted); Prince v. North State Bank, 425 S.W.2d 476 (Tex.Civ.App.— Amarillo 1968, no writ); McConnell v. Flynn Investment Company, 480 S.W.2d 58 (Tex.Civ.App.—El Paso 1972, no writ); Mayatt v. Northam, 317 S.W.2d 592 (Tex.Civ.App.—Houston 1958, no writ).

A cause becomes moot when the appellate court’s judgment cannot have any practical legal effect upon a then existing controversy. Stephenson v. State, 515 S.W.2d 362 (Tex.Civ.App.—Dallas 1974, writ dism’d); McNeill v. Hubert, 119 Tex. 18, 23 S.W.2d 331 (Tex.Comm’n App.—1930, opinion adopted). This Court cannot now prevent that which has already been done.

Courts do not decide cases when no actual controversy between the parties exists at the time of the hearing. As was said in City Of West University Place v. Martin, 132 Tex. 354, 123 S.W.2d 638 (1939):

“. . . This court will not proceed to a determination when its judgment would be wholly ineffectual for want of a subject-matter on which it could operate. An affirmance would ostensibly require something to be done which had already taken place. A reversal would ostensibly avoid an event which had already passed beyond recall. One would be as vain as the other. To adjudicate a cause which no longer exists is a proceeding which this court uniformly has declined to entertain.”

See also Texas Alcoholic Beverage Commission v. Carlin, 468 S.W.2d 521 (Tex.Civ.App. —Beaumont 1971, aff’d 477 S.W.2d 271); McConnell v. Flynn Investment Company, supra; Greene v. Greggs, 520 S.W.2d 924 (Tex.Civ.App.—Tyler 1975, no writ).

We now turn to the appeal of the Bank in regard to the trial court’s action in overruling its plea of privilege and denying its plea in abatement. The Bank in its first point of error contends that the trial court erred in overruling its plea of privilege because 12 U.S.C., § 94, prohibits a suit against a national bank outside of the county of its domicile unless that is the only forum available.

Section 94 of Chapter 2 entitled “Venue of Suits” provides:

“Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”

The issue then is whether the venue provision of the above code is mandatory with respect to this suit.

It has been held that this provision of the code (12 U.S.C. § 94) is mandatory and is not permissive. A national bank can only be sued in the state, county, or municipal court in the county or city in which the association is located. Mercantile National Bank at Dallas v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963); Michigan National Bank v. Robertson, 372 U.S. 591, 83 S.Ct. 914, 9 L.Ed.2d 961 (1963). In this last case, the Supreme Court held that a suit for usury involving the sale of house trailers in Nebraska could not be brought in Nebraska against a national bank located in Michigan even though the contracts had been made and the acts complained of occurred in Nebraska.. The suit could only be brought in the home office of the bank in Michigan. See also Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602 (1947); Bruns, Nordeman & Co. v. American National Bank And Trust Company, 394 F.2d 300 (2nd Cir. 1968), cert. denied, 393 U.S. 855, 89 S.Ct. 97, 21 L.Ed.2d 125 (1968); Klein v. Bower, 421 F.2d 338 (2nd Cir. 1970); First National Bank of Boston v. United States District Court For the Central District of California, 468 F.2d 180 (9th Cir. 1972); United States National Bank v. Hill, 434 F.2d 1019 (9th Cir. 1970); Fisher v. First National Bank of Omaha, 338 F.Supp. 525 (S.D.Iowa, 1972); Rome v. Eltra Corporation, 297 F.Supp. 314 (E.D.Pa., 1969).

There are two exceptions, however, to 12 U.S.C., § 94. One, where a bank consents to be sued or waives its defenses when sued in another county. This exception is not applicable here. The other exception is where the action is a purely local action such as a suit relative to ownership of real estate, rather than a transitory action. In Casey v. Adams, 102 U.S. 66, 26 L.Ed.2d 52 (1880), the Supreme Court for the first time made a distinction between “transitory” and “local” actions with respect to venue in suits against national associations.

The court there held that the mandatory venue statute applied only to transitory and not to local actions. As the court pointed out, “Local actions are in the nature of suits in rem, and are to be prosecuted where the thing on which they are founded is situated.” The United States Supreme Court in Mercantile National Bank at Dallas v. Langdeau, supra, in its opinion at footnote 11 recognized, without disapproval, its earlier holding in Casey v. Adams, when it held that an earlier statute in substantially the same terms as Title 12, U.S.C. § 94, related to transitory actions but not to local in rem actions. See Casey v. Adams, supra; Klein v. Bower, supra; Michigan National Bank v. Robertson, supra; Chateau Lafayette Apartments, Inc. v. Meadow Brook National Bank, 416 F.2d 301 (5th Cir., 1969); Fort Worth National Bank v. Ballanfonte, 469 S.W.2d 9 (Tex.Civ.App.—Houston [14th Dist.] 1971, no writ); Lone Star Producing Company v. Bird, 406 S.W.2d 344 (Tex.Civ.App.—Tyler 1966, writ dism’d); Kader v. First National Bank of Fort Myers, 387 F.Supp. 535 (W.D.Pa., 1975); Central Bank, National Association v. Superior Court For the County Of Sacramento, 30 Cal.App.3d 962, 106 Cal.Rptr. 912 (1973).

Therefore, the sole question here is whether Development Co.’s suit states a “local” rather than a “transitory” action. We must, therefore, determine the true nature of Development Co.’s suit.

The nature of this suit is to be determined by the Court, as a matter of law, solely from the facts alleged in the petition, the principal rights asserted, and the relief sought. Brown v. Gulf Television Company, 157 Tex. 607, 306 S.W.2d 706 (1957); Renwar Oil Corporation v. Lancaster, 154 Tex. 311, 276 S.W.2d 774 (1955); Scott v. Whittaker Pipeline Constructors, Inc., 517 S.W.2d 406 (Tex.Civ.App.—Austin 1974, no writ); City of Wichita Falls v. State ex rel. Vogtsberger, 509 S.W.2d 661 (Tex.Civ.App.—Fort Worth 1974, no writ); Ashby v. Delhi Gas Pipe Line Corporation, 500 S.W.2d 686 (Tex.Civ.App.—San Antonio 1973, writ dism’d); Wagner v. Pulliam, 361 S.W.2d 470 (Tex.Civ.App.—Eastland 1962, no writ); Shellberg v. Shellberg, 428 S.W.2d 117 (Tex.Civ.App.—Fort Worth 1968, writ dism’d); Evans v. Speed, 339 S.W.2d 257 (Tex.Civ.App.—Fort Worth 1960, writ dism’d); W. B. Johnson Drilling Company v. Lacy, 336 S.W.2d 230 (Tex.Civ.App.—Eastland 1960, no writ).

It is, however, the ultimate or dominant purpose of the suit by Development Co. which determines whether or not the suit falls under Subdivision 14, being a “local” action or whether such is a transitory action. Edgar v. Bartek, 507 S.W.2d 831 (Tex.Civ.App.—Corpus Christi 1974, writ dism’d); Bee County Cooperative Association v. Dominy, 489 S.W.2d 418 (Tex.Civ.App.—Corpus Christi 1972, no writ); Morgan v. Box, 449 S.W.2d 499 (Tex.Civ.App.— Dallas 1969, no writ); Texaco Inc. v. Gideon, 366 S.W.2d 628 (Tex.Civ.App.— Austin 1963, no writ); Wagner v. Pulliam, supra.

The Development Co. names numerous defendants under its fourth amended petition. Its cause of action is based upon an alleged violation of the usury laws of the State of Texas. The relief sought was in the nature of injunctive relief, damages of $24,958,520.62, cancellation of certain indebtedness, penalty for contracting for interest and double the amount permitted by the laws, and declaratory relief holding that certain deeds of trust liens are null and void. As against the Bank and the trustee, the Development Co. alleges that there was a conspiracy between the Insurance Co. and the Bank and that the Bank acted pursuant to this conspiracy in deciding to foreclose on the liens following the default of the $2.5 million dollar loan. The Development Co. alleges that the deeds of trust obtained by the Bank were either procured by fraud or in the alternative, the consideration for the granting of the deeds of trust on the land was absent or has failed. Finally, the Development Co. sought injunctive relief against the Bank, restraining the Bank and trustee from holding the trustee’s sale until the merits of the case had been determined and for declaratory relief cancelling the deeds of trust and declaring the same to be null and void.

Again, the primary question before us is whether the ultimate or dominant purpose of the suit brought by the Development Co. is an action for the recovery of lands and falls within Subdivision 14 of Article 1995 and is, therefore, classified a “local” action or whether such action is merely “transitory” and is subject to 12 U.S.C., § 94 which contains the mandatory venue provision. We hold that the primary purpose of the Development Co.’s suit was transitory in nature and it was error for the trial court to deny the Bank’s plea to be sued in the county of its residence (Harris County).

The Bank in its second, point of error asserts that the trial court erred in denying the Bank’s plea in abatement because the 164th Judicial District Court in Harris County acquired prior jurisdiction over the parties to the suit. As is demonstrated by the record, the Development Co. had originally brought suit in the 107th District Court of Cameron County against numerous defendants based upon the alleged violation of the usury statutes of: Texas. Thereafter, the Bank brought suit in the Harris County District Court against the Development Co. and Sams-Porter Corp. Its sole cause of action was for a debt owed by the Development Go. to the Bank. Approximately two hours after the Bank filed suit against the Development Co. and Sams-Porter Corp., the Development Co. filed its third amended petition in the Cameron County District Court joining the Bank alleging the existence of a conspiracy between the Bank and the Insurance Co.

In order to sustain a plea in abatement on the grounds of a prior suit pending, it is generally necessary to show that the court to which jurisdiction was first acquired (Harris County District Court) had all of the necessary parties before it and was entitled to proceed to judgment on all questions necessarily and properly involved in both, the first and second suit. The test would be whether the judgment rendered in the first suit would be res judicata as against any judgment rendered by a court subsequently acquiring jurisdiction. 1 Tex. Jur.2d Abatement and Revival, § 31. The parties involved in the first suit were not the same as those involved in the second suit in Cameron County District Court. The issues were also different.

Therefore, upon examination of the parties and issues in the Harris County case at the time the Cameron County case was filed, we find that no judgment rendered by the Harris County District Court would have been res judicata with respect to any of the parties or their rights in the Cameron County District Court.

Before abatement is proper, it must appear that the cause or causes of action and the issues included are substantially the same in the two suits. Curtis v. Gibbs, 511 S.W.2d 263 (Tex.Sup.1974); Rowland v. Prappas, 491 S.W.2d 179 (Tex.Civ.App.— Houston [1st Dist.] 1973, writ ref’d n. r. e.); Maverick County Water Control And Improvement District No. 1 v. City Of Laredo, 346 S.W.2d 886 (Tex.Civ.App.—San Antonio 1961, writ ref’d n. r. e.); Woods Exploration & Producing Company, Inc. v. Aluminum Company of America, 382 S.W.2d 343 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n. r. e.); Perusse v. Perusse, 402 S.W.2d 931 (Tex.Civ.App.—El Paso 1966, no writ); 1 C.J.S. Abatement and Revival § 40, p. 40; 1 Tex.Jur.2d Abatement and Revival § 34. Therefore, the action of the trial court in overruling the Bank’s plea in abatement was proper. The Bank’s second point of error is overruled.

We now come to the proper disposition of these two appeals. The Development Co.’s appeal from the denial of the temporary injunction by the trial court as to its cause is dismissed. CAUSE DISMISSED.

The trial court’s order in overruling the Bank’s plea of privilege is reversed and judgment is here rendered transferring that cause to the District Court of Harris County. REVERSED AND RENDERED.

The judgment of the trial court in overruling the Bank’s plea in abatement is AFFIRMED.

The judgments of the trial fiourt are AFFIRMED IN PART, REVERSED AND RENDERED IN PART, AND DISMISSED IN PART.

      . “Transfers by bank and other acts in contemplation of insolvency

      All transfers of the notes, bonds, bills of exchange or other evidences of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate, or of judgments or decrees in its favor; all deposits of money, bullion, or other valuable thing for its use, or for the use of any of its shareholders or creditors; and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void; and no attachment, injunction, or execution, shall be issued against such association or its property before final judgment in any suit, action, or proceeding, in any State, county, or municipal court." (Emphasis supplied.)


source: Caselaw Access Project

author: DIES, Chief Justice.

license: Public Domain

text:
    Steward JONES, Jr., Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 7844.
    Court of Civil Appeals of Texas, Beaumont.
    June 17, 1976.
    R. E. McDaniel, Winnie, for appellant.
    Francie A. Patterson, Asst. Dist. Atty., Beaumont, for appellee.
   DIES, Chief Justice.

On August 12, 1975, Steward Jones, Jr., was involved in a motor vehicle accident on a public street. He had no liability insurance. On October 29, 1975, the Texas Department of Public Safety sent Jones a “Notice of Suspension.” Jones requested and received a hearing on December 5, 1975, before a Justice Court, as provided in Tex.Rev.Civ.Stat.Ann. art. 6701h (Supp. 1975-1976). The Justice of the Peace found for the Department of Public Safety, and the Department on December 26,1975, sent Jones an “Order of Suspension” (of his license to operate a motor vehicle). On January 5, 1976, Jones filed an appeal with the County Clerk of Jefferson County. On February 20, 1976, the trial court dismissed the appeal concluding “that under the present statute, such appeals must be filed in the County Court at Law within twenty days from the date of the ruling of the Justice Court in said matters.” From this Order of Dismissal, Jones has perfected this appeal.

Tex.Rev.Civ.Stat.Ann. art. 6701h § 5(b) (Supp.1976) provides:

‘If, after a hearing, the determination is that there is a reasonable probability of a judgment being rendered against the person as a result of the accident, the person may appeal the findings to the county court of the county in which the hearing was held and the appeal shall be de novo.
“If a written request for a hearing is not delivered or mailed to the Department within twenty (20) days after personal service or the mailing of notice and the person has not established within that time that the provisions of this section do not apply to him or if within twenty (20) days after a hearing and exhaustion of the appeal procedure, if an appeal is made in which the decision is against the person requesting the hearing, security and proof of financial responsibility .” etc. (Emphasis supplied.)

Obviously Jones’ appeal did not comply with this provision. However, he cites us Tex.Rev.Civ.Stat.Ann. art. 6701h § 2(b) (1969) as follows:

.“(b) Any order or act of the Department, under the provisions of this Act, may be subject to review within thirty (30) days after notice thereof, or thereafter for good cause shown, by appeal to the County Court at Law . . . .” etc.

His appeal did comply with this provision. We hold that his appeal was timely and reverse the judgment of the trial court and remand the cause for a trial upon the merits.

REVERSED and REMANDED.

STEPHENSON, J., not participating.


author: KEITH, Justice.

text:
    Ex parte Alton WRIGHT.
    No. 7851.
    Court of Civil Appeals of Texas, Beaumont.
    June 17, 1976.
    Rehearing Denied July 8, 1976.

      R. Leon Pettis, Richard N. Evans, Beaumont, for appellant.
    Ernest L. Sample, Donald E. Sample, Beaumont, for appellee.

      . One day after the issuance of this show cause order, Patricia filed her bond in the sum of $250, with her counsel as sureties.

   KEITH, Justice.

Our original jurisdiction has been invoked under the provisions of Art. 1824a, Tex.Rev. Civ.Stat.Ann. (Supp.1975-1976), but first we must identify our cast of characters. Patrick Wright brought suit for divorce against his wife, Patricia. In due time, Patricia sought a temporary restraining order to prevent Patrick and his parents, Alton and Charlene Wright, from disposing of certain property alleged to have been acquired in Korea during the course of the marriage of Patrick and Patricia. She did not, at any time, make Alton and Charlene parties to the suit. The temporary restraining order was granted on November 5,1975, upon Patricia’s sworn statement based up on her information and belief, and the order did not require Patricia to file a bond.

Alton and Charlene were served with a copy of the restraining order and the accompanying show cause order requiring their appearance, but they defaulted. Some two months later, Patricia filed a motion to hold Patrick, Alton, and Charlene in contempt for violation of the temporary restraining order, and again a show cause order was issued. Patrick, but neither Alton nor Charlene, attended at the time and place indicated by the court. Finally, a hearing was held before the judge of the Court of Domestic Relations of Jefferson County, Texas, which resulted in an order holding Alton and Charlene in contempt of court for the violation of the temporary restraining order. They were ordered confined in jail until each purged himself of contempt by delivering the property which Patricia claimed they had in their possession belonging to her.

Only Alton was confined to jail and upon his application we granted the writ of habe-as corpus and admitted him to bail pending a determination of the controversy. We have a full statement of facts with all of the testimony introduced at the hearing of the contempt motion as well as a transcript of the pleadings. We have likewise been furnished with briefs and the parties have argued the cause.

Just as Chief Justice Burger stated in Maness v. Meyers, 419 U.S. 449, 458, 95 S.Ct. 584, 591, 42 L.Ed.2d 574, 583 (1975):

“We begin with the basic proposition that all orders and judgments of courts must be complied with promptly. If a person to whom a court directs an order believes that order is incorrect the remedy is to appeal, but absent a stay, to comply promptly with the order pending appeal. Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect.”

Notwithstanding the admonition of the Chief Justice, the Court held that the imprisonment of Maness was illegal. We reach the same result for the reasons now to be stated.

The adjudication which we review was of civil contempt, i. e., remedial and coercive in nature. Ex parte Werblud, 536 S.W.2d 542 (Tex.1976) (19 Tex.Sup.Ct.Jrl. 286, 287, 1976); Ex parte Hosken, 480 S.W.2d 18, 23 (Tex.Civ.App. — Beaumont 1972, original proceedings). But, as stated in Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 829 (1960):

“Contempt proceedings are generally criminal in their nature whether they grow out of criminal or civil actions. It follows then that the proceedings should conform as nearly as practicable to those in criminal cases.”

Accord: Ex parte Sandefer, 461 S.W.2d 193, 194 (Tex.Civ.App. — Eastland, 1970, original proceedings); Ex parte Hosken, supra (480 S.W.2d at 23).

yVe are satisfied that the trial court had jurisdiction of the parties and of the subject matter of the suit; and, we decline to consider the ex parte affidavit of Relator Alton Wright attached to his petition for the writ of habeas corpus. The time and the place for his testimony with reference to impossibility of compliance with the court’s order [under the rationale of Ex parte DeWees, 146 Tex. 564, 210 S.W.2d 145, 147 (1948)] was in the trial court when the matter was being considered.

The rule of law governing our decision is that set out by Chief Justice Hickman in Ex parte LaRocca, 154 Tex. 618, 282 S.W.2d 700, 702 (1955):

“The sole question for decision is whether there was any evidence offered at the trial upon which the trial judge could base the conclusions above quoted. If not, relators have been denied due process of law and the contempt order was and is void.”

As stated in LaRocca, supra, we have no authority to evaluate facts and we may consider the facts only for the purpose of determining whether they constituted acts sufficient to confer jurisdiction upon the court to make the particular order. And, as stated in an earlier case cited in LaRocca, the fact that a judgment may be erroneous does not render it void.

In Ex parte Henderson, 512 S.W.2d 37, 40 (Tex.Civ.App. — El Paso, 1974, original proceedings), the court considered the leading cases by our Supreme Court and concluded: “[Ojur review of the evidence is to determine whether or not the trial Court’s findings which form the basis of the judgment are so completely without eviden-tiary support as to render the Court’s judgment void.” Our review of the evidence is under this standard.

In our consideration of the evidence offered upon the hearing, we bear in mind the well-established rule enunciated in Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628, 631 (1941):

“Such incompetent [hearsay] evidence can never form the basis of a finding of fact or of the judgment of a court; and this is so whether it be objected to or not. Henry v. Phillips, 105 Tex. 459, 151 S.W. 533; Austin Bros. v. Patten, Tex.Com.App., 294 S.W. 537; 17 Tex.Jur., p. 512, § 211.”

Accord: Aetna Insurance Company v. Klein, 160 Tex. 61, 325 S.W.2d 376, 381 (1959); Way v. Fisher, 425 S.W.2d 704, 705 (Tex.Civ.App. — Houston [14th Dist.] 1968, no writ); Sampson v. Apco Oil Corporation, 476 S.W.2d 430, 431 (Tex.Civ.App. — Amarillo 1972, no writ); Hebert v. Loveless, 474 S.W.2d 732, 737 (Tex.Civ.App. — Beaumont 1971, writ ref’d n. r. e.); Gulf St. Pipe Line v. Orange Cty. Water Dist., 526 S.W.2d 724, 727 (Tex.Civ.App. — Beaumont 1975, writ ref’d n. r. e.); Covault v. Texas Instruments, Inc., 531 S.W.2d 441, 444 (Tex.Civ.App. — Tyler 1975, no writ).

We return to the central fact of the contempt commitment: Relator Alton Wright was ordered confined in jail until such time as he complied with the court’s order of November 5, 1975, by turning over certain property claimed by Patricia to have been shipped from Korea. Patrick, called by Patricia’s counsel upon the contempt hearing, testified that he received the notice of the temporary restraining order on or about November 6, and he was asked:

“Q. All right, now at this time when you got the papers where was the shipment from Korea?
“A. At that time it was already lost to my knowledge.
“Q. It already had been lost on November 5th?
“A. Right . .

Being interrogated as to what had happened to the property from Korea, Patrick said: “I tried every way I could to get them to give me the stuff [and] they said they didn’t have it, didn’t know where it was, as far as they knew it had been stolen.” The record is unclear as to who was referred to as “they” and “them.”

The trial judge, sensing the unsatisfactory nature of the testimony being elicited from Patrick, intervened in the proceedings:

“THE COURT: Wright. Now you mentioned in answer to one of counsel’s questions you think you know who has this property. Who is that?
“A. Well I think my parents have hidden and secreted and all that good stuff. They weren’t supposed to.
“THE COURT: Is that why you think no theft report has been made?
“A. That is exactly the reason I haven’t reported it.” (emphasis supplied)

Upon examination by his own counsel, Patrick reiterated the foregoing testimony, adding that he had no idea of where his parents might have stored the property.

Patricia, testifying to certain threats against her by Charlene Wright, her mother-in-law, told of a conversation she had had with Charlene Wright wherein no mention was made of the property having been stolen. But, significantly, she did not testify that she had any conversation with Alton Wright or that he had ever so much as seen the property.

The nearest anyone ever came to placing any of the Korean property in the possession of Alton or Charlene Wright was this testimony from Patrick under examination by his own counsel:

“Q. Patrick, isn’t it a fact that after this stuff [Korean property] reached your mother’s house actually it was already unpacked and distributed throughout the house or was it still in the crate?
“A. No, my mother told me, I never saw it, they unloaded it and uncrat-ed it to make sure nothing was broken.
“Q. So to put it back into the carport you would have to crate it up again? “A. Yes, they would have to stack it to put it in the carport.”

Only by concluding that Mrs. Wright’s extra-judicial statement, as related by Patrick, was binding upon her husband and by concluding that “they” referred to and meant Alton and Charlene Wright, does respondent put Alton Wright even close to the property in question. Certainly, no court can permit the confinement for an extended period of time upon such unsatisfactory testimony.

We invoke the rule stated by the late Chief Justice Hickman in Ex parte Morris, 147 Tex. 140, 215 S.W.2d 598, 599 (1948):

“Had relator been convicted without a hearing it would hardly be claimed that due process had been accorded him. There was a proceeding in this case in the form of a hearing, but no evidence of relator’s guilt was offered at that hearing. The proceeding, therefore, was a hearing in form only and not such a hearing as is essential to the validity of the judgment. The court was without jurisdiction to enter the contempt order in the absence of some evidence of guilt.”

See also, Ex parte Bethurum, 153 Tex. 563, 272 S.W.2d 85, 87 (1954), holding: “A judgment of contempt without support in the evidence is void and may be attacked and set aside even in a collateral proceeding.”

The fact that Relator did not appear at the hearing on the contempt is not determinative since an accused in such a hearing may not be required to give incriminating evidence against himself. In Kastigar v. United States, 406 U.S. 441, 444, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212, 217 (1972), it was held that the privilege against self-incrimination can be asserted “in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory.”

Being of the opinion that there is no evidence in the record supporting the finding of contempt, Alton Wright is entitled to be released from confinement.

The writ of habeas corpus is granted and relator, Alton Wright, is discharged from custody and the sureties upon his appearance bond are released from all liability thereunder. It is so ordered.

STEPHENSON, J., not participating.

      . For further amplification of the DeWees doctrine, see: Ex parte Gonzales, 414 S.W.2d 656 (Tex.1967); Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.1967). See also, Ex parte Padfield, 154 Tex. 253, 276 S.W.2d 247, 251 (1955), and Ex parte Ramzy, 424 S.W.2d 220, 226 (Tex.1968).

      . We are not reviewing a contempt hearing involving the confinement of Patrick’s mother, Charlene Wright; consequently, we express no opinion upon the effect of this statement as to Charlene Wright.


author: PHILLIPS, Justice.

text:
    Dale E. MULLER et ux., Appellants, v. Billy L. LIGHT d/b/a Light Construction Company, Appellee.
    No. 12406.
    Court of Civil Appeals of Texas, Austin.
    June 23, 1976.
    Rehearing Denied July 14, 1976.

      James R. Sloan, Sloan & Wise, Austin, for appellants.
    Jack Ritter, Jr., Austin, for appellee.
   PHILLIPS, Justice.

This case involves a number of questions with respect to a contract between the parties hereto to construct a dwelling house for appellants Dale and Lucille Muller.

The appellee, Billy L. Light, doing business ■ as Light Construction Company, brought suit in the district court to recover $11,827.87 from appellants for the cost of the house, for certain extra items, and to foreclose his mechanic’s and materialman’s lien on the project.

Appellants brought a counterclaim against appellee for delay of completion, defects in construction, and for failure to construct the house according to plans.

In response to jury findings on special issues, the trial court entered judgment for appellee for $10,775.77, granted the foreclosure of the lien, and denied appellants recovery on their counterclaim based on a liquidated damages provision in the contract. Appellants then perfected their appeal to this Court.

Appellants are before us on a number of points of error which, in essence, present three questions.

The first question involves the trial court’s overruling appellants’ motion for judgment on their cross-claim for $5,700. In this cross-claim appellants seek to recover on the following liquidated damage clause: “. . . time being the essence of this contract, contractor shall pay to the owners or deduct from the total contract price One Hundred and No/100 ($100.00) Dollars per day as liquidated damages for each day after said date that the construction is not completed and accepted by the Owners and Owners shall not arbitrarily withhold acceptance.”

We hold that the trial court was correct in overruling appellants’ motion for judgment with respect to their claim for liquidated damages. In Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484 (1952), the Supreme Court held that in order to enforce a liquidated damage clause, the court must find: (1) that the harm caused by the breach is incapable or difficult of estimation, and (2) that the amount of liquidated damages called for is a reasonable forecast of just compensation. The issue of the enforceability of liquidated damages in any given case is one of law for the court to decide. Bourland v. Huffhines, 244 S.W. 847 (Tex.Civ.App.1922, writ dism’d); Schepps v. American District Telegraph Co. of Texas, 286 S.W.2d 684 (Tex.Civ.App.1955, no writ).

In our judgment the clause in question fails by each standard set out in Stewart v. Basey, supra. First, damages for delay in the construction of a building are usually predictable as the rental value of the building during the delay. Ryan v. Thurmond, 481 S.W.2d 199 (Tex.Civ.App.1972, writ ref’d n. r. e.); Hill v. Willett, 281 S.W. 1110 (Tex.Civ.App.1926, no writ).

Second, there is no reasonable relationship between appellants’ actual damages, that is, the loss of the use of the house during the period of delay, and the amount of damages computed under the liquidated damages provision. Testimony established the rental value of the home at $400-$415 per month. The liquidated damages clause would establish damages of $3,000 per month. Such a disparity leads one to the conclusion that appellants, who drafted the liquidated damages provision, intended the provision to serve as an in terrorem device to insure prompt performance by the builder, rather than as a reasonable estimate of actual damages.

The next question presented by this appeal is whether the trial court erred in granting recovery to appellee on the jury’s findings which appellants allege, were based upon no evidence or insufficient evidence.

In this respect, the jury found that appel-lee built the following features in appellants’ home in “substantial compliance of the plans and specifications of the contract”: the barbecue pit, the flooring in the garage of the house, the driveway, the front sidewalk, the front porch, the windowsills on the windows, the china cabinet doors in the dining area, the roof of the house, the sliding glass doors opening off the bedrooms, the air conditioning and heating equipment, and the concrete foundation.

The jury found that the appellee had substantially complied with the contract in each of the above mentioned items. The only other inquiries put to the jury were conditioned on a negative response to each inquiry on substantial compliance, whereupon the jury was asked whether the defects could be repaired without impairing the building as a whole and, if so, the cost of the repairs necessary to restore the item complained of to a condition which would be in substantial compliance with the agreed plans and specifications. On each item, the jury found that appellee had substantially complied with the contract, and left the following issues unanswered.

We note that the manner in which the above mentioned issues were conditioned resulted in the jury failing to find all the elements upon which a plaintiff has the burden of proof under substantial performance as a theory of recovery. See Atkinson v. Jackson Brothers, 270 S.W. 848 (Tex.Comm’n App. 1925, holding approved). However, appellants failed to object to the defective submission of special issues at trial, and have failed to assign this ground as error in either their amended motion for new trial or under any point of error in their brief. Under these circumstances, it is basic that the error is waived, and will not be considered on appeal. St. Louis Southwestern Railway Company v. Gregory, 387 S.W.2d 27, 29 (Tex.1965), Holloman v. City of Georgetown, 526 S.W.2d 682, 686 (Tex.Civ.App.1975, writ ref’d n. r. e.).

The jury’s answers to special issues 34 through 37 found that the parties hereto had entered into an oral agreement to add a patio and steps leading therefrom as an addition to appellants’ house. The jury then found that the patio and steps were not constructed in a good and workmanlike manner and that it would take $161.50 to restore the patio and steps “in a good and workmanlike manner.”

In issues 49 through 52, the jury found that the parties hereto had entered into an oral agreement to construct a retaining wall, that the retaining wall was not constructed in a good and workmanlike manner and that it would take $800 to restore the retaining wall to a condition which would be in a good and workmanlike manner.

The trial court defined “good and workmanlike manner” as the work (that) will be done in the same manner that a person would do it and in a manner generally considered skillful by those capable of judging such work in the community of the performance. See Westbrook v. Watts, 268 S.W.2d 694 (Tex.Civ.App.1954, writ ref’d n. r. e.); Preiss v. Edge, 57 S.W.2d 883 (Tex.Civ.App.1933, no writ).

We cannot agree with appellants’ contention that the jury findings that ap-pellee failed to construct the patio and steps and the retaining wall in a good and workmanlike manner preclude any recovery whatsoever for this work. Authorities cited by appellants hold that a builder is precluded from any recovery whatsoever only if his work is worthless to the owner. In the present case the retaining wall and patio, although defective, are of some value to appellants, and appellee is entitled to recover the value of these items, less the amount necessary to repair the items to a good and workmanlike condition. Badeaux v. Cohen, 437 S.W.2d 310 (Tex.Civ.App.1969, no writ); Rogowicz v. Taylor and Gray, Inc., 498 S.W.2d 352 (Tex.Civ.App.1973, writ ref’d n. r. e.).

We also overrule appellants’ no evidence and insufficient evidence points pertaining to the jury answers to special issues 53 and 54. The jury found that thirteen items of extra work had been orally agreed to between appellants and appellee, and awarded appellee $3,083.87 as the reasonable value of the materials and labor expended in construction of those items.

Only appellee testified as to the fair value of the labor and materials involved in the extra work. Though he was unable to provide bills or records of his costs for materials and labor, such testimony raised fact issues as to the fair and reasonable value of the labor and materials. Dyer v. Sterett, 248 S.W.2d 234 (Tex.Civ.App.1952, no writ). The jury, as trier of fact, chose to believe appellee and resolved these fact issues in his favor. Appellants’ points of error are overruled.

We affirm the judgment of the trial court.

Affirmed.


author: BARROW, Chief Justice.

text:
    E. C. SCHWOPE, Appellant, v. Jack KIESLING et ux., Appellees.
    No. 15532.
    Court of Civil Appeals of Texas, San Antonio.
    June 23, 1976.
    Bartram, Reagan & Burrus, Charles Blackley, New Bruanfels, for appellant.
    Urban Farrow, Rufino Cabello, Carrizo Springs, for appellees.
   BARROW, Chief Justice.

Appellant has perfected his appeal from a take-nothing summary judgment rendered in his suit for specific performance of a contract for the sale of 2,976.7 acres of land owned by appellees in Maverick County or, in the alternative, for damages.

On May 9, 1973, appellant, as Buyer, and appellees, as Seller, entered into an earnest money contract prepared by Ken Karger, a real estate agent, whereby Seller agreed to sell the land for a total sales price of $600,-000.00 to be paid in accordance with the terms of the contract. The contract provided that the offer would “expire on June 8, 1973.” The original draft provided that the contract was contingent upon Buyer securing an earnest money contract on another tract in Maverick County and securing a purchaser for a tract owned by him in Bex-ar County. These two contingencies were crossed out and initialed by Buyer and Kar-ger. Buyer deposited the sum of $10,000.00 with Karger as Escrow Agent.

Buyer alleged that the contract was accepted by him on June 8, 1973, and that he has been ready, willing, and able to carry out the contract since that time, but that Seller notified Buyer by letter of June 15, 1973, that it was repudiating such contract. Seller alleged that the contract did not become operative in that the offer was not timely accepted by Buyer and that the contract does not properly reflect the agreement as to the escrow agent or the amount of minerals to be conveyed.

We have a threshold question as to what summary judgment evidence was before the trial court. Both parties moved for a summary judgment. Buyer’s motion for partial summary judgment was filed on November 30, 1973, but the affidavit of Ken Karger was not filed by Buyer until January 18, 1974. Seller’s motion was filed on December 7, 1973, and is supported by the affidavit of Jack Keisling. The judgment recites that the motions came on to be heard on January 18, 1974, and the trial court considered “the pleadings, affidavits, briefs and statements of counsel” (emphasis ours). The court took the matter under advisement and judgment was not rendered and signed until July 18, 1975. Included in the transcript are photocopies of the transcribed depositions of Karger and Jack Keisling, which were given orally on September 27, 1973, but were not filed until October 1, 1975.

Seller objects to our consideration of the affidavit of Karger in that it was not filed one day prior to the hearing as required by Rule 166-A, Tex.R.Civ.P. There is nothing in the record to show that any objection was made to this procedure. On the contrary, the judgment recites that the affidavits were considered by the trial court. In view of the fact that this matter was taken under advisement by the trial court, we may presume that the affidavit of Karger, filed on the day of the hearing, was considered by the trial court along with that of Keisling, in accordance with the recitation in the judgment. The depositions were not filed until long after the hearing and there is no recitation in the judgment or elsewhere in the record that they were called to the attention of the trial court. Accordingly, we do not consider the two depositions as part of the summary judgment record.

The first question is whether Buyer’s acceptance on June 8, 1973, was timely in view of the provision in the earnest money contract that the offer would “expire on June 8,1973.” Seller urges that Buyer was required by this provision to accept the offer before June 8,1973. Surprisingly, we have found no case squarely in point. The established rule in this State is that when time is to be computed from or after a certain day or date, the designated day is to be excluded and the last day of the period is to be included. Pitcock v. Johns, 326 S.W.2d 563 (Tex.Civ.App. — Austin 1959, writ ref’d). See also Art. 5429b-2, Sec. 2.04(a), Tex.Rev.Civ.Stat.Ann.; Rule 4, Tex. R.Civ.P. In Knox v. Brown, 277 S.W. 91 (Tex.Comm’n App.1925, jdgmt. adopted), it was held that Knox’s right to purchase the land expired on June 1, 1923, when Knox was granted an option to be exercised “on or before June 1, 1923.”

Here the contract expired on June 8, 1973, Under the above authorities, this day should be properly included in the absence of some evidence to show a contrary intent by the parties to the agreement. Such a construction carries out ordinary usage of the term. For example, a term of public office expires on December 31st. Clearly, the official is authorized to act that entire day. We conclude that Buyer’s acceptance on June 8, 1973, was timely.

Seller alleged that the earnest money contract did not set out the agreement of the parties in that Jack Keisling told Kar-ger that Seller wanted the Citizens State Bank of Carrizo Springs designated as Escrow Agent as Karger was related to Buyer. This allegation is supported by the affidavit of Keisling. It is seen from the contract which was signed by Keisling and his wife that they knew of this provision at the time they signed the contract. At the very least a fact issue is raised that the contract correctly sets forth the agreement of the parties. See Thigpen v. Locke, 363 S.W.2d 247 (Tex.1962).

Seller also asserts that there was no meeting of the minds in that the contract could not be performed in the form prepared by Karger as Seller owns only about half of the minerals, and thus, could not convey title to all minerals. Karger averred by his affidavit that this fact was known to Buyer and was satisfactory to Buyer. There is nothing in the contract regarding the amount of minerals owned by Seller or to be conveyed by Seller. It is not established that Buyer wants or expects to receive all the minerals. Thus, it has not been shown by the summary judgment proof that the earnest money contract cannot be carried out by Seller.

It is urged by Seller on this appeal that the contract is inoperative in that Seller’s offer was impliedly rejected and a new offer made by Buyer with the deletion of the two contingencies by Buyer. There were no pleadings by Seller of this contention. However, these two contingencies were both to the benefit of Buyer, and the deletion by Buyer at the time he signed it did not serve as a rejection of Seller’s offer. United Concrete Pipe Corp. v. Spin-Line Co., 430 S.W.2d 360 (Tex.1968). In any event, a fact issue is raised by the affidavit of Karger as to whether Seller consented to this deletion.

There is no other reason urged by Seller in support of the take-nothing summary judgment. We conclude that the trial court erred in granting such judgment, and therefore grant Buyer’s prayer that the judgment be reversed and the cause remanded to the trial court.

Accordingly, the judgment of the trial court is reversed and the cause remanded to the trial court.


author: CADENA, Justice.

text:
    J. C. JONES et al., Appellants, v. Raul C. GARCIA et al., Appellees.
    No. 15636.
    Court of Civil Appeals of Texas, San Antonio.
    June 23, 1976.

      Daniel R. Rutherford, San Antonio, for appellants.
    Oscar C. Gonzalez, Carter, Callender & Gonzalez, Richard W. Harris, Dobbins, Howard & Harris, James N. Martin, San Antonio, for appellees.
   CADENA, Justice.

This is an appeal from an order temporarily enjoining defendants, J. C. Jones and wife, Lou N. Jones, from (1) foreclosing upon or selling any of the corporate stock of plaintiff, J. C. Jones Paint, Inc. (referred to in this opinion as the “corporation”), which was previously sold by defendants to plaintiff, Raul C. Garcia; (2) taking possession of, or attempting to exercise dominion over the corporate stock, inventory, or assets of the corporation; (3) interfering with the conduct of the business of the corporation or with the management of such business by Garcia; (4) harassing, intimidating, or otherwise interfering with persons dealing with such corporation or Garcia; and (5) from foreclosing upon or attempting to sell certain real property owned by Garcia.

Prior to September 1, 1975, defendants owned all of the stock of the corporation and were actively engaged in the management of the corporation’s business. On September 1, 1975, Garcia and defendants entered into a contract for the sale of such shares of stock by defendants to Garcia for the sum of $325,000.00. Garcia paid defendants the sum of $10,000.00 in cash and executed a promissory note in the amount of $315,000.00, payable in monthly installments, for the remainder of the purchase price. To secure payment of such note Garcia executed a collateral pledge agreement covering the shares of stock and the assets of the corporation. The agreement pledging the assets of the corporation as security was executed by Garcia in his individual capacity and as president of the corporation, and was given to secure payment not only of the $315,000.00 note executed by Garcia, but also, payment of any other indebtedness owed by the corporation to defendants. Previously, on January 25, 1975, defendant, J. C. Jones, had advanced the sum of $15,000.00 to the corporation and had executed, as president, and on behalf, of the corporation, a demand note in that amount payable to himself.

On February 17, 1976, defendants made demand for payment of the $15,000.00 note. On that same day they declared that the $315,000.00 note was in default, exercised their right of acceleration, and demanded payment of the entire amount of principal and interest.

On March 4,1976, defendants executed an instrument reciting default in payment of the two notes and giving notice that on March 12, 1976, between the hours of 9:00 A.M. and 12:00 A.M., all shares of the corporation and all assets of the corporation would be sold to the highest bidder “at the door of the Courthouse in Bexar County, Texas.” A copy of this notice was mailed to Garcia, but he denied receiving it, although he admitted that his attorney had told him of the impending sale.

The notice of sale was published in a newspaper on March 5, 8, 9, 10, and 11, 1976, and copies of it were posted on a bulletin at the south door of the courthouse and at two other public places.

On March 4, 1976, Garcia and the corporation filed suit seeking, among other things, injunctive relief against foreclosure by defendants. On that day the court issued a temporary restraining order prohibiting foreclosure and setting the hearing on plaintiffs’ application for temporary injunction on March 12, 1976. Plaintiffs were unable to serve copies of the restraining order and notice of the temporary injunction hearing on defendants, and on March 11, 1976, the court, on plaintiffs’ motion, reset the date for hearing of the application for temporary injunction. The new hearing date was March 18, 1976.

On March 12, 1976, J. C. Jones and his attorney went to the north door of the courthouse, where the attorney conducted the sale. J. C. Jones, the only bidder, purchased the shares of stock and the assets of the corporation for $60,000.00. The sale took place at 9:01 A.M. and was concluded at 9:03 A.M.

After the sale had taken place, Jones and his attorney entered the courthouse by way of the north door and proceeded down the first floor corridor in a southerly direction toward a coffee shop located on the first floor. Before they arrived at the coffee shop, they saw what they described as a “covey” of lawyers and deputy sheriffs walking in a northerly direction toward them. In order to avoid a “hassle,” Jones and his attorney decided to have their coffee at a hotel located east of the courthouse. As they were exiting from the courthouse by way of one of the exits located on the east side of the building, they were served with the temporary restraining order and notice of the hearing on the application for temporary injunction.

That afternoon defendants filed their answer to plaintiffs’ suit, as well as a motion to dissolve the temporary restraining order. On March 16, 1976, plaintiffs filed their first amended original petition, alleging the occurrence of the sale on March 12, and praying that the sale be set aside. They also prayed for temporary and permanent injunctive relief. The hearing resulting in the issuance of the temporary injunction commenced on March 18, 1976, and the order from which defendants appeal was signed March 26, 1976.

Defendants’ points 4 and 5, asserting that plaintiffs’ pleadings do not support the issuance of the temporary injunction, are without merit. Defendants did not call to the attention of the court the fact that plaintiffs’ pleadings were not verified. This defect was waived. The complaint that the injunction is beyond the scope of the pleadings cannot be upheld. The pleadings in the case are not models of clarity, but prior to the introduction of evidence there was an exchange of remarks among the trial judge and the attorneys concerning the questions to be determined at the hearing. During this exchange, the attorneys for the parties agreed concerning the scope of the hearing. The judgment is well within the limits of such agreements, so that all issues resolved by the court were clearly tried by consent.

The statement of facts in this case consists of more than 600 pages, and numerous exhibits were admitted into evidence. Our examination of the statement of facts has been made unnecessarily difficult by the fact that we are without the benefit of an index. Nor was our task simplified by the fact that the attorneys persisted in adding, from their places at the counsel table, unsolicited remarks attempting to clarify, expand, or limit the answers of witnesses. In some instances counsel supplied, or at least suggested, the answer before the witness could respond to the question. One of the attorneys interrupted the examination of a witness by opposing counsel, or by the court, several times with attempts to interpose questions of his own and, when rebuked by the court, lamented that he was being denied an opportunity to ask questions. Since no jury was involved, we do no more than note the existence of these improprieties and deplore the unnecessary confusion resulting from the failure to observe the most basic rules of orderly trial procedure.

We consider first that portion of the temporary injunction restraining defendants from taking possession of, or attempting to exercise dominion over, the corporate stock or assets of the corporation; interfering with the management and conduct of the business of the corporation by Garcia; and harassing, intimidating, or otherwise interfering with persons dealing with the corporation or with Garcia.

Our review of orders granting or denying a temporary injunction is limited to the determination of whether the action of the trial court can be classified as a clear abuse of discretion. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962). To warrant the issuance of a temporary injunction, the applicant need only show the existence of a probable right and probable injury. A trial court does not abuse its discretion in granting a temporary injunction if the petition alleges a cause of action and the evidence presented tends to show that he will finally prevail in the litigation. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, 552 (1953).

The order granting the injunction recites that the trial court “found” that the foreclosure sale was invalid because the sale was not made in a “commercially reasonable manner” in that (1) the notice of sale was insufficient and misleading; (2) the notice was not advertised for an appropriate length of time; and (3) the notice did not properly describe the place at which the sale was to take place.

There is evidence to the effect that, in Bexar County, a notice reciting that a sale is to be held at the “door of the Courthouse” is uniformly interpreted as declaring that the sale will take place at the south door of the courthouse. There is evidence that no such sale has ever been conducted at any other entrance to the courthouse. The notice of sale was posted by defendants’ attorney on a bulletin board maintained at the south entrance for the posting of notices. When asked why he had not posted the notice at the north entrance, the attorney replied that there was no place at the north entrance for the posting of notices of sale. The evidence indicates that Garcia and plaintiffs’ attorneys, seeking to effect service of the restraining order on defendants, had gone to the south door of the courthouse. Defendants’ attorney, during the course of presenting an argument to the trial court, stated that it was not defendants’ fault that plaintiffs had assumed that the sale would be conducted at the south door, and that plaintiffs should have had deputy sheriffs and lawyers present at each entrance to the building.

In view of such evidence, we cannot say that the trial court abused its discretion in concluding that the notice was defective insofar as it attempted to describe the place of sale. At best, the notice failed to specify where the sale would be conducted. At worst, the notice had the effect of leading people to believe that the sale would take place at the south door, in which case the sale in question, which was conducted at the north door, did not take place at the location indicated by the notice. The evidence raises sufficient question concerning the commercial reasonableness of the circumstances under which the sale took place to warrant the issuance of an injunction to preserve the status quo until a final determination of the issue following a trial on the merits. Tex.Bus. & Comm.Code Ann. § 9.504.

We must also uphold that part of the injunction which temporarily restrains sale of Garcia’s real property which was pledged as security for the payment of the $315,000.00 note. The evidence conclusively establishes that Garcia had made all payments due under such note and, while the evidence is conflicting, there is substantial credible evidence to the effect that Garcia was conducting the business in a prudent businesslike manner without significantly impairing defendants’ security or significantly reducing the equity represented by each share of the pledged stock of the corporation. Once again, given the nature of the testimony, we cannot say that the trial court abused its discretion in determining that the threatened foreclosure of the deed of trust lien should be enjoined pending a final hearing on the merits in order to maintain the status quo.

Defendant, J. C. Jones, testified that if he were denied the right to immediate possession of the shares of stock and assets of the corporation, it would be impossible to determine the extent to which he had been pecuniarily damaged if he should prevail following a trial on the merits as a result of being temporarily deprived of such possession. Such evidence is sufficient to indicate that damages resulting from a temporary deprivation of the right to possession and of the right to manage and operate the business would result in damages which would be difficult to ascertain. The trial court did not abuse its discretion in determining that denial of the temporary injunction would result in irreparable harm to plaintiffs and that relief by way of damages would be inadequate.

Finally, defendants complain of the action of the trial court in setting the amount of the injunction bond at only $10,000.00, and ask that we increase the amount of the bond. In support of this complaint, defendants argue that Garcia could within a very short period of time convert the assets of the corporation to cash “and spirit them away.” It is also argued that, because of the manner in which Garcia was operating the business, all of the assets of the corporation could be dissipated. In addition, it is pointed out that defendants’ only additional security is the lien of an apartment complex owned by Garcia in which Garcia had an equity of only $12,000.00. The argument also refers to the testimony of J. C. Jones to the effect that if a temporary injunction were granted, he would be damaged in the amount of $278,000.00.

The problem with defendants’ argument is that it is based on the assumption that the testimony of J. C. Jones compels the drawing of certain conclusion when, in fact, his testimony amounts to no more than an expression of fear based on his contention that Garcia is “milking” the corporation. In view of the testimony to the effect that the corporation is in sound condition and the testimony indicating that the corporation is, in fact, making a higher profit than that which was realized during the period when J. C. Jones was in control, it cannot be said that the trial court abused its discretion in concluding that these fears had no basis in fact.

There is no evidence concerning the present market value of the apartment complex which Garcia pledged as security for the payment of the $315,000.00 note. There is no evidence indicating that it has deteriorated in value, nor is there any hint that Garcia is not operating it in a prudent manner. There is no possibility that this security can be destroyed or placed beyond defendants’ reach. Once again, defendants’ contention can be accepted only if we focus our attention on evidence favorable to defendants and disregard all evidence to the contrary. An appellate court cannot base a finding that the trial court abused its discretion on such a one-side evaluation of the testimony.

Nothing in this opinion is to be construed as holding that the sale held on March 12, 1976, was in fact void, or that plaintiffs are not, in fact, in default. Final determination of those issues must await a trial on the merits.

The judgment of the trial court is affirmed.

      . The record reflects that the trial court had completely familiarized itself with the numerous financial statements, balance sheets, and profit and loss statements introduced in evidence. This knowledge of the contents of the numerous exhibits is reflected not only in the questions which the court asked of the witnesses, but also in the fact that, on numerous occasions, the court assisted the attorneys by pointing out to them the particular exhibit which would facilitate the questioning of the witnesses by the attorneys.


author: DUNAGAN, Chief Justice.

text:
    RUSK COUNTY ELECTRIC COOPERATIVE, INC., Appellant, v. T. H. FLANAGAN et ux., Appellees.
    No. 930.
    Court of Civil Appeals of Texas, Tyler.
    June 24, 1976.
    Rehearing Denied July 15, 1976.

      A. H. Waldrop, Waldrop, Shaw & Minton, Henderson, for appellant.
    Blake Bailey, Wellborn & Houston, Henderson, for appellees.
   DUNAGAN, Chief Justice.

This suit was instituted by T. H. and Darlene Flanagan against the Rusk County Electric Cooperative, Inc., for damages resulting from the termination of electricity after the nonpayment of a $2.02 bill. The judgment, based upon the jury’s answers to Special Issues, awarded the Flanagans $250 for actual damages and $1,500 for attorneys’ fees. The Electric Cooperative duly perfected its appeal. We affirm the award of actual damages and reverse that portion of the judgment awarding attorneys’ fees.

The Electric Cooperative normally bills its members prior to the 15th of each month for electricity consumed in a previous time period. The bill apparently contains a statement that failure to pay before the 15th will result in a specified penalty charge and that failure to pay before the 25th will result in termination of the member’s electric power.

The Flanagans’ power was cut off for nonpayment of a bill for part of the electricity consumed in September, 1973. The Flanagans received a bill for $8.10 in October and paid that bill with a check dated October 14th. That bill was for the estimated amount of electricity consumed in September. There is some evidence that an exact bill was not supplied because the Electric Cooperative was in the process of switching to computerized billing. At any rate, an adjustment bill was mailed to the Flanagans on November 19th a.nd was discovered by them on Saturday, November 24th. This bill charged the Flanagans $10.12 for consumption through October 1st, credited them with the $8.10 payment, and showed the amount due as $2.02. They mailed a check for $2.10 ($2.02 plus an $.08 late penalty charge) on Monday, November 26th, in a properly addressed and stamped envelope. The electricity was cut off at the Flanagans’ home on November 28th. The Flanagans’ check was received and deposited by the Electric Cooperative on Monday, December 3rd.

The Electric Cooperative contends that the termination of power was justified by the Flanagans’ failure to pay the $2.02 adjustment bill by November 25th. We disagree.

The provision for payment by the 25th of a given month applied to regular bills received before the 15th of that month and not to an adjustment bill mailed on the 19th. The agreement between the Flana-gans and the Electric Cooperative contained no time provision for payment of adjustment bills.

Generally, where no time of performance is stated in a contract, the law will imply a reasonable time. Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940 (1944). Failure to specify a time for payment for goods or services will render the debt payable within a reasonable time after performance. Beall v. Hardwicke-Etter Co., 460 S.W.2d 516, 519 (Tex.Civ.App.— Waco 1970, writ dism’d). There is often an element of uncertainty in the determination of the length of a “reasonable time” in a particular case. 1 Corbin on Contracts, Section 96 at 414. What is “reasonable time” must be determined by the circumstances of each case. Houston County v. Leo L. Landauer & Associates, Inc., 424 S.W.2d 458, 463 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r. e.); Hall v. Hall, 158 Tex. 95, 308 S.W.2d 12, 16 (1957).

When a contract for the sale of goods or rendition of services fails to fix a time for payment, the gap is readily supplied from general usage or the previous course of dealing. In the absence of an agreement or course of dealing to the contrary, payment is due upon delivery. 1 Corbin on Contracts, Section 96 at 414—415; Erb-Springall Co. v. Pittsburg Plate Glass Co., 101 S.W. 1165 (Tex.Civ.App.—1907, writ ref’d). The previous course of dealing between the Flanagans and the Electric Cooperative did not require payment upon delivery but rather deferred the termination date for at least two weeks after the bills were mailed. We hold that a reasonable time for the payment of the adjustment bill in this case was two weeks after the Electric Cooperative mailed that bill. See Beall v. Hardwicke-Etter Co., supra.

It is undisputed that the cut off of the Flanagans’ electricity occurred before the expiration of this two-week period. In fact, the Electric Cooperative deposited the Flan-agans’ payment on the last day of that period. It must be concluded that the termination of electrical power on November 28th was wrongful.

Actual damages may be recovered for the wrongful termination of electricity. See Southwestern Gas & Electric Co. v. Stanley, 123 Tex. 157, 70 S.W.2d 413 (1934). We affirm that portion of the judgment awarding actual damages and turn to the award of attorneys’ fees.

An attorneys’ fee of $1,500 was awarded under the Debt Collection Chapter of the Consumer Protection Act, Tex.Rev.Civ.Stat. Ann., art. 5069-11.01 et seq. (Supp.1976). Article 11.10 provides that any person may maintain an action for actual damages sustained as a result of a violation of this act; a person who successfully maintains such an action shall be awarded reasonable attorneys’ fees.

The Flanagans contend that the Electric Cooperative used an “unfair means” of attempting to collect a debt and thus violated Article 11.04(b). This Article prohibits any attempt to collect a charge incidental to the obligation unless such charge is expressly authorized by the agreement creating the obligation. The jury found that the Electric Cooperative attempted to collect extra and unusual charges before reconnecting the power.

The record shows that Mrs. Flanagan met with Mr. Angus Mims of the Electric Cooperative on December 1st. She protested the termination on the ground that they had paid all their bills. Mr. Mims testified that he initially thought that Mrs. Flanagan was correct but that an investigation indicated that the Flanagans were behind on their payments. Mr. Mims offered to reconnect the power immediately upon the payment of $26.52. This figure was the total of $2.10 for the balance of September, $9.71 for October, $9.71 for November and $5.00 for a nonpayment disconnect fee. Mrs. Flanagan refused this offer because she did not agree that they were behind on their payments.

Even if this offer was an attempt to collect an extra and unauthorized charge incidental to an obligation, we cannot agree that the recovery of an attorneys’ fee was justified. Attorneys’ fees are recoverable under the Debt Collection Act only in an action “for actual damages sustained as a result of a violation of this Act.” Article 11.10, supra. The Flanagans recovered actual damages for the spoilage of food in their freezer and the loss of the use of their home. These damages, however, were clearly not the result of any unreasonable collection efforts. These damages resulted from the wrongful termination of electricity. Article 11.10 is, by its own terms, inapplicable.

The portion of the Trial Court’s judgment awarding actual damages is affirmed; the portion of the judgment awarding the attorneys’ fee is reversed and judgment is here rendered that the Electric Cooperative is not liable for the attorneys’ fee.

      . The Flanagans neither received nor paid a bill for electricity consumed in October. The record indicates that nonpayment for October power was the initial reason for the cut off. This reason, however, was not urged in the Trial Court and is not urged on appeal.

      . Although we base this holding upon the common law relating to contracts, we note that the same result could be reached under Tex.Bus. & Comm.Code Ann. Section 2.310(4) (1968).


author: McDONALD, Chief Justice.

text:
    EDWARD SCHARF ASSOCIATES, INC., Appellant, v. Barry M. SKIBA et al., Appellees.
    No. 5579.
    Court of Civil Appeals of Texas, Waco.
    June 24, 1976.
    Goldberg & Alexander, John M. McMul-len, Dallas, for appellant.
    Herbert H. Phillips, Dallas, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Scharf from $2250. judgment for plaintiffs Skiba and Corley, in suit for damages for breach of a commitment to loan plaintiffs money.

Plaintiffs sued defendant alleging plaintiffs made application to defendant for a $28,050. loan to buy real estate plaintiffs had contracted to purchase; that defendant approved the application and made commitment to loan plaintiffs the money; that thereafter defendant refused to make the loan; that plaintiffs lost their earnest money deposited with the seller and sustained other damages. Plaintiffs further plead defendant acted willfully and sought exemplary damages.

Trial was to a jury, findings of which are summarized as follows:

1) During May or June 1974, defendant acting through its employees, informed plaintiffs, that defendant had approved plaintiffs’ loan application, and that defendant had made a commitment to loan plaintiffs money to purchase the property at 5807 Fox Hill Lane in Dallas.
2) Defendant failed and refused to provide the money for the loan.
3) Defendant’s conduct in not providing the loan was not willful.
4) Plaintiffs’ damage as result of defendant’s failure to provide the loan was $2250.

The trial court rendered judgment on the verdict for plaintiffs against defendant for $2250.

Defendant appeals contending the trial court erred in rendering its judgment because plaintiffs’ cause of action was based upon an oral contract contemplating the creation of a lien on realty, which is made unenforceable by the Statute of Frauds.

In April, 1974, plaintiffs Skiba and Corley made written application to defendant for a real estate loan to enable them to purchase a house located at 5807 Fox Hill Lane in Dallas. In May, 1974, plaintiffs were told by an employee of defendant that the loan had been approved. The contract of sale between plaintiffs and the owner required closing by June 15, 1974. The money for the loan was not provided by that time, and on June 18,1974, defendant informed plaintiffs it did not have the money to loan plaintiffs. On July 9, 1974, another employee of defendant informed plaintiffs that defendant could not make the loan in the foreseeable future. The owner of the house had allowed plaintiffs additional time to try and get the money, but after July 9, 1974, retained plaintiffs’ earnest money, and sold the house to others.

Plaintiffs’ loan application reflects the loan would be secured by a first lien on the property and other evidence reflects plaintiffs were to execute a Deed of Trust on the property to secure the loan.

The Statute of Frauds pertinent to this case is contained in Texas Business & Commerce Code section 26.01 as follows:

“(a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is
(1) in writing; and
(2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.
(b) Subsection (a) of this section applies to * * .
(4) a contract for the sale of real estate * * *

Thus the Statute of Frauds declares that agreements that come within it are unenforceable unless the agreement is in writing and is signed by the party to be charged therewith.

The consideration for defendant’s promise to make plaintiffs the loan was that plaintiffs would give a lien and a Deed of Trust on the land. Such contract comes within the Statute of Frauds. Kistler v. Latham, Comm.Appls. Judgment Adopted, 255 S.W. 983, 985. Other cases holding that where a contract contemplates the creation of a lien or a mortgage, such contract is within the Statute of Frauds, and must be in writing to be enforceable are: Woodman v. Bishop, CCA (San Antonio) 203 S.W.2d 977; West v. First Baptist Church of Taft, 123 Tex. 388, 71 S.W.2d 1090.

See also Poarch v. Duncan, CCA (Er.Ref.) 41 Tex.Civ.App. 275, 91 S.W. 1110, which holds that a mortgage is a conveyance of real estate as security for the payment of a debt.

The effect of the Statute of Frauds is to render unavailing to the parties, as the ground of a claim, any parol contract, in whatever shape it may be put, by which either of them is to part with real estate. Sprague v. Haines, 68 Tex. 215, 4 S.W. 371, 372; Chandler v. City State Bank in Wellington, CCA (Amarillo) NWH, 135 S.W.2d 1013; Aubrey v. Workman, CCA (Ft. Worth) NRE, 384 S.W.2d 389; Priddy v. Green, CCA (Amarillo) NWH, 220 S.W. 243, 250.

Plaintiffs’ cause of action was based on an oral contract to make them a loan on real estate, upon which plaintiffs would give defendant a lien and a Deed of Trust, and is within the Statute of Frauds. The insufficiency of a contract under the Statute of Frauds, precludes both recovery for specific performance, and damages for the breach thereof. Moore v. Mohon, CCA (Waco) NWH, 514 S.W.2d 508; Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150.

Defendant’s contention (and point) supra is sustained.

The judgment is reversed and judgment is here rendered that plaintiffs take nothing.

REVERSED AND RENDERED.


author: HALL, Justice.

text:
    Eva June Blackstock KIMERY, Appellant, v. Thomas J. BLACKSTOCK, Appellee.
    No. 5556.
    Court of Civil Appeals of Texas, Waco.
    July 1, 1976.
    Bob L. Sullivan, Fort Worth, for appellant.
    Michael J. Rogers, Cleburne, for appellee.
   HALL, Justice.

Eva June Blackstock and Thomas J. Blackstock were divorced in January, 1974. The custody of their children, a boy born in September, 1965, and a girl born in September, 1973, was awarded to the mother. The father brought this action in April, 1975, seeking custody of the children. After a hearing without a jury, the court rendered judgment in July, 1975, changing custody of the boy to the father, but leaving custody of the girl with the mother. The mother appeals contending, among other things, that the evidence is legally and factually insufficient to support a finding of material change of conditions since the prior custody order, and that the court erred when it interviewed the boy in chambers without her counsel present. We affirm.

Both the father and the mother of the children have married again. The father remarried in February, 1974; the mother remarried in June, 1975. The father’s second wife has custody of two sons of a former marriage. Their ages are nine and six. They and the boy in question get along fine. The mother’s new husband is the custodian of a 14-year-old daughter of his former marriage. There is evidence indicating the father’s marriage is at this time the more stable of the two. There is also testimony from which the trial court could have believed that the boy’s stepfather will have little time to spend with him; that the boy is not receiving proper parental supervision and training from his mother; that he will receive adequate attention and supervision from his father, stepmother, and paternal grandparents if he is placed with his father; and that the boy wishes to live with his father. These facts are some evidence supporting the finding of a change of circumstances material to the welfare of the boy. A review of all of the evidence convinces us that this finding is not against the great weight and preponderance of the evidence.

When the parties concluded their proof, the court stated that he would talk with the boy in chambers, but with only the children’s court-appointed counsel present, to determine the boy’s wishes as to his conservator. The interview was held without objection and is a part of the record.

The court was authorized by V.T.C.A., Family Code § 14.07, to hold the interview with the boy outside the presence of the parties and their counsel. Moreover, the mother’s complaint for the first time on appeal comes too late.

All points of error are overruled. The judgment is affirmed.


author: JONES, Justice.

text:
    Robert F. STEPHENS, Attorney General, et al., Appellants, v. BONDING ASSOCIATION OF KENTUCKY et al., Appellees.
    Supreme Court of Kentucky.
    June 11, 1976.
    Rehearing Denied July 30, 1976.

      C. Gibson Downing, Stoll, Keenon & Park, Harry B. Miller, Miller, Griffin & Marks, Lexington, for appellants.
    Don H. Major, Mulhall, Major, Turner & Taylor, Louisville, for appellees.
   JONES, Justice.

This proceeding originated as an action in Jefferson Circuit Court by Bonding Association of Kentucky, AA Bonding, and Spencer Bonding Co., Inc., against the Commonwealth Attorney of Jefferson County. The Attorney General of the Commonwealth was permitted to intervene. The members of the association and the respective bonding companies are commercial bail bondsmen. This suit was brought to test the constitutionality of certain provisions of House Bill No. 254. The trial court held that, “House Bill No. 254, as it related to prohibition or abolition of the bail bondsman business be and it is hereby declared unconstitutional as unreasonable and arbitrary in violation of the 14th Amendment of the U. S. Constitution and Sec. I of the Kentucky Constitution.” The Commonwealth Attorney of Jefferson County, and the Attorney General of the Commonwealth, appeal from the final judgment entered in this action.

The issue on appeal centers upon Sec. I of House Bill No. 254. It is apparent to this court that the single question presented is whether Sec. I of House Bill No. 254 violates the 14th Amendment to the U. S. Constitution and Sec. I of the Kentucky Constitution.

The Kentucky General Assembly, at its 1976 session, enacted House Bill No. 254. The act is entitled, “An Act relating to the release of persons in criminal proceedings, and prohibiting certain practices in relation thereto.” Sec. I of House Bill No. 254 provides:

“(1) It shall be unlawful for any person to engage in the business of bail bondsman as defined in KRS 304.-34-010(1), or to otherwise for compensation or other consideration:
(a) furnish bail or funds or property to serve as bail; or
(b) make bonds or enter into undertakings as surety; for the appearance of persons charged with any criminal offense or violation of law or ordinance punishable by fine, imprisonment or death, before any of the courts of this state, including city courts, or to secure the payment of fines imposed and of costs assessed by such courts upon a final disposition.”

The penalty section of House Bill No. 254 provides that, “Any person who violates any provisions of this act not otherwise punishable by law or statute shall be guilty of a Class A misdemeanor for the first offense and guilty of a Class D felony for each additional offense.” House Bill No. 254, in its entirety, is a comprehensive bail reform act. It is unique in that it abolishes the professional, commercial bail bondsman as that practice existed before the enactment of House Bill No. 254.

The bonding companies argued in the trial court, as they do here, that the Commonwealth of Kentucky cannot, through legislation under its police power, abolish an entire business not inherently injurious to the public or demoralizing in its activities. They contend also that the business of commercial bail bondsmen can and should be regulated under existing statutory provisions. They argue that House Bill No. 254, as it relates to the abolition of the commercial bail bondsman is an unreasonable regulation without furtherance of any substantial public purpose.

The Commonwealth Attorney of Jefferson County and the Attorney General of the Commonwealth contend that the public interest in bail reform as provided in House Bill No. 254 outweighs the private pecuniary interest of commercial bail bondsmen. They argue that abolition of the compensated surety constitutes a reasonable exercise of the police power.

This court recognizes that it is within the province of the legislature to assimilate, consider and weigh all the factors inherent in the concept of public welfare. That which is detrimental to the Commonwealth is a proper basis for the legislature’s consideration.

Reform of the compensated surety in the bail bond system has been advocated in legal and judicial publications for many years. Authoritative studies and reports are critical of compensated surety in the criminal justice system. Many reports recommend the elimination of the compensated surety from the pretrial release system.

“The professional bondsman is a feature of the criminal process almost unique to the United States. Only the United States and the Philippines apparently give him a major role in the criminal process. In U.S. courts his function is so important that it has often been said that it is he, not the court, who actually makes the effective bail decision .
“The professional bondsman is an anachronism in the criminal process. Critical analysis of his role indicates that he serves no major purpose that could not be better served by public offices at less cost in economic and human terms.” American Bar Association Project on Minimum Standards for Criminal Justice, Pretrial Release pp. 61-64, 1968 approved draft.

In the foreword to Goldfarb’s book Ransom, an excellent critiqüe of the American bail system, former Associate Justice Goldberg of the Supreme Court of the United States writes:

“If it is true that ‘the quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of its criminal law,’ then the American bail system as it now operates can no longer be tolerated. At best, it is a system of checkbook justice; at worst, a highly commercialized racket.”

The financial condition of the defendant should not be a determining factor in his relationship to the criminal process. The result of the checkbook system of pretrial justice is the creation of a lucrative private business. This effect has been summarized:

“ . . . The effect of such a system is that the professional bondsmen hold the keys to the jail in their pockets. They determine for whom they will act as surety — who in their judgment is a good risk. The bad risks, in the bondsmen’s judgment, and the ones who are unable to pay the bondsmen’s fees, remain in jail. The court and the commissioner are relegated to the relatively unimportant chore of fixing the amount of bail.”
“The commercial bail bondsman has long been an anathema to the criminal defendant seeking to exercise his right to pretrial release. In theory, courts were to set such amounts and conditions of bonds as were necessary to secure the appearance of defendants at trial. . Those who did not have the resources to post their own bond were at the mercy of the bondsman who could exact exorbitant fees and unconscionable conditions for acting as surety.”

This court is of the opinion that the policy to be followed in promoting the public welfare is a legislative matter. If the interest of the public is affected, the adjustment is a matter for the legislature. That problem calls into play the “police power.” That power is as broad and comprehensive as the demands of society make necessary. It must keep pace with the changing concepts of public welfare. Certainly the legislature could take cognizance of the inherent evils and abuses of the compensated surety in the bail bond system.

The bonding companies concede that the business of compensated surety in the bail bond system is subject to reasonable regulation through the police power. They make an eloquent plea for the system to remain as it existed prior to enactment of House Bill No. 254. They assert that other provisions of House Bill No. 254, which deal with pretrial release, will bring about the demise of the compensated surety — that “they will die on the vine.”

This court now addresses the bonding companies’ argument that this law results in the taking of property “without due process of law.” The exercise of police power almost inevitably involves the destruction or limitation of property rights without a hearing. There is no violation of the constitutional mandate if the police power is properly exercised. In a number of cases this court has upheld the exercise of police power in the public interest. Such holdings have resulted in stringent regulation or abolition of private businesses.

One hundred and ten years ago, this court recognized the legislature’s power to prohibit attorneys from acting as surety for criminal defendants in Jefferson County and in the city of Louisville. Then, this court commented:

“Whilst it was evidently the intention of the framers of the constitution to secure prisoners the inestimable privilege of bail, it was not intended to declare the qualifications of the bail, but to leave to the law making department the power, unabridged who should be deemed sufficient bail . . ,.” (Emphasis added)

One hundred years later, this court in reference to regulation and prohibition of businesses under the police power, said:

“It may be conceded that there have always been certain kinds of activity which, though not harmful or offensive per se, can be not only regulated under the police power but, because of their ‘potential evil consequences,’ prohibited altogether.”

The bail bonding business by compensated surety is not “an ancient honorable and necessary calling,” but one whose evils have been tolerated because of deep-rooted antipathy against the confinement of persons entitled to a presumption of innocence pending trial. Bail bonding by compensated surety has never enjoyed a favorable status but exists because no better system has been provided. It does not have protection as an integral part of the judicial process that will require this court to invalidate a new system designed by the General Assembly to remedy the evils of the existing system and at the same time provide adequate guarantee of pretrial release.

The provisions of bail related to criminal defendants are governed by rules of this court. To argue that the compensated surety has the same standing as barbers, merchants, professions and other businesses is needless rhetoric.

On numerous occasions, this court has been presented with problems concerning regulation and prohibition of certain businesses. A city may forbid the operation of private sewage and garbage disposal facilities and compel its inhabitants to use public facilities. Likewise, the state may prohibit the sale of alcoholic beverages in proximity to schools, hospitals, and places of worship. Cities of certain classes can prohibit the operation of pool rooms. The sale of “filled milk” has been prohibited though there was no evidence that the product was undesirable or unwholesome.

The Kentucky General Assembly found the business of commercial bail bonding detrimental to the welfare of citizens of this Commonwealth. It responded accordingly by enacting House Bill No. 254. In so doing, the legislature severed the life-sustaining cord from the respirator that gave life to commercial surety bail bonding. Instead of letting commercial sureties “die on the vine,” the enactment of House Bill No. 254 permits commercial bonding companies as surety for profit to go quickly and “gently into that good night.”

This court refrains from nullifying House Bill No. 254. Section I of the act with its companion sections has brought reform and needed relief to the state’s bail system. It violates neither the 14th Amendment of the U.S. Constitution nor Section I of the Kentucky Constitution. This court holds that Section I of House Bill No. 254 is constitutional.

The judgment is reversed.

All concur.

      . A Class A misdemeanor carries a sentence of imprisonment for a term not to exceed 12 months. A Class D felony provides for a sentence of imprisonment for not less than one year nor more than five years.

      . These considerations are contained in the preamble to the act and in the report of the joint meeting of the House and Senate Judiciary Committee on House Bill No. 254.

      . National Advisory Commission on Criminal Justice Standards and Goals: Report on Courts, Standard 4.6 p. 83, Standard 4.7 p. 85; Report on Corrections, Standard 4.4 p. 120 (January 23, 1973) Ransom, a Critique of the American Bail System, Ronald Goldfarb (1965); Stainback, Bail and Bail Bondsmen: Need for Reform in Kentucky, 61 Ky.L.J. 601.

      . Goldberg, Foreword to R. Goldfarb, Ransom at ix (1965).

      . Pannell v. United States, 115 U.S.App.D.C. 379, 320 F.2d 698, 699 (1963) (Concurring opinion).

      . Schilb v. Kuebel, 404 U.S. 357, 373-374, 92 S.Ct. 479, 488, 30 L.Ed.2d 502, Douglas, J. (dissent).

      . Jasper v. Commonwealth, Ky., 375 S.W.2d 709 (1964).

      . Bonding companies’ oral argument.

      . U.S. Constitution, Section I, 14th Amendment.

      . Johnson v. Commonwealth, 63 Ky. (2 Duvall) 411 (1866).

      . Bruner v. City of Danville, Ky., 394 S.W.2d 939 (1965).

      . Cassidy v. City of Bowling Green, Ky., 368 S.W.2d 318 (1973).

      . Beacon Liquors v. Martin, 279 Ky. 468, 131 S.W.2d 446 (1939).

      . Arms v. Town of Vine Grove, 203 Ky. 213, 262 S.W. 11 (1924).

      . Carolene Products v. Hanrahan, 291 Ky. 417, 164 S.W.2d 597 (1942).