author: CIRE, Justice.

text:
    Martha BARRETT, Appellant, v. Dr. Elaine MANTOOTH, Appellee.
    No. 1663.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 20, 1977.
    Rehearing Denied Aug. 10, 1977.

      John H. Holloway, Houston, for appellant.
    V. W. McLeod, James L. Ware McLeod, Alexander, Powel & Apffel, Inc., Galveston, W. N. Arnold, Jr., Russell H. McMains, Fulbright & Jaworski, Thomas S. Hornbuckle, Houston, for appellee.
   CIRE, Justice.

Plaintiff appeals from the overruling of a motion to reinstate her case which had been dismissed for want of prosecution.

Appellant Martha Barrett brought this suit in Galveston County for damages arising out of the alleged malpractice of appel-lee Dr. Elaine Mantooth and other physicians. The record discloses the following activity in the case:

March 29,1974 Suit filed against defendant Mantooth
April 19 Defendant Mantooth’s answer
April 26 Plaintiff’s interrogatories propounded to Dr. Mantooth
May 2 Defendant Mantooth’s interrogatories propounded to plaintiff
May 9 Plaintiff’s first amended petition
May 23 Defendant Mantooth’s answers to interrogatories
May 28 Plaintiff’s second amended petition adding five defendants
June 21 Answer of defendants Dr. Joe Magliolo, Dr. Albert Magliolo, and Dr. Amedeo Magliolo
July 3 Answer of defendants Dr. Kenneth Griffith and Dr. Katy Youngblood
July 19 Plaintiff’s answers to interrogatories
August 5 Defendant Mantooth’s correction of answers to interrogatories
August 6 Plaintiff’s supplemental petition
August 9 Plaintiff’s third amended petition
September 6 Answer of defendant Magliolo Clinic Associated
September 10 Answer of defendant Dr. Edward F. Good
September 12 Answer of defendant Dr. Lynn Pearson
September 18 Plaintiff’s notice of intention to take oral deposition
September 20 Defendant Good’s motion to quash notice to take deposition
December 9 Plaintiff’s interrogatories to defendants Pearson and Good
January 20,1976 Defendant Good’s answer to interrogatories
January 30 Defendant Pearson’s answers to interrogatories
July 1 Plaintiff’s notice of intention to take oral deposition
January 16,1976 Defendants’ notice of intention to take deposition of Dr. Robert J. Goodall.

In July 1976 the case was placed on the dismissal docket pursuant to the local rules of court of Galveston County, which require inclusion on that docket of civil jury cases which have been on file for over two years and are not set for trial or other hearing. The court’s docket sheet shows that a postcard giving notice that the case had been placed on the drop docket was mailed to plaintiff’s counsel on July 19, 1976 and another postcard giving notice of dismissal was mailed on August 27, 1976. The case was dismissed for want of prosecution by order of the court signed August 27, 1976. Plaintiff filed her motion to reinstate the case, under rule 165a, Texas Rules of Civil Procedure, on February 14, 1977.

The court held a hearing on plaintiffs motion to reinstate on February 18, 1977. Plaintiff’s attorney, John N. Holloway, testified he did not receive either the notice that the case was being placed on the drop docket or the notice of dismissal. He said that he first received notice of the dismissal on January 20, 1977, when the district clerk’s office telephoned and advised him that his request for trial setting made a few days earlier could not be considered because the case had been dismissed. Holloway outlined the procedure consistently followed in his office for processing notices that a case had been placed on the drop docket and said he always followed up on such notice to maintain his cases on the docket. He stated that he always prosecuted his cases and that he would have filed a motion to retain this case on the docket had he received notice that it was to be dismissed.

James R. Chapman, an attorney working for Holloway, and Lawanda Wagner, Holloway’s secretary, both testified as to the system used for handling dismissal notices and stated that the firm did not receive any notice, by mail or otherwise, that the case had been dismissed for want of prosecution.

Juanita Monroe, secretary to the Honorable Hugh Gibson, in whose court the case had been pending, testified that she personally sent out notices that this case had been placed on the drop docket and notices that the case had been dismissed, and that such notices had been sent to Holloway’s firm. The record contains photocopies of the front of postcards mailed to the parties’ counsel (including appellant’s counsel) giving notice that the case had been placed on the drop docket and other postcards mailed to the same counsel notifying them that the case had been dismissed. V. W. McLeod, of Galveston, and W. N. Arnold, Jr., of Houston, attorneys for two of the defendants in this ease, testified that they received postcard notices that the case had been placed on the drop docket and that the case had been dismissed. The notices addressed to McLeod’s firm were introduced into evidence.

Thomas Hornbuckle, attorney for one of the defendants, also testified that his firm received the two postcard notices. He related a conversation he had with Holloway on August 11, 1976, during which this exchange took place:

THEN I SAID WHAT ARE YOU GOING TO DO ABOUT THAT MAN-TOOTH MATTER, THAT CASE HAS BEEN PLACED ON THE DROP DOCKET AND HE SAID WELL THAT DOESN’T HAVE ANY PARTICULAR OR RATHER THAT DOES NOT PRESENT ANY PARTICULAR PROBLEM BECAUSE ALL ONE NEED DO IS FILE A MOTION TO RETAIN THE CASE ON THE DOCKET.

The court overruled plaintiff’s motion to reinstate the case, finding “that plaintiff’s counsel received notice of the dismissal and/or the court’s intention to dismiss within time to have filed a motion for new trial within 20 days after the case was dismissed.”

Plaintiff appeals from that order on nine points of error. The first point asserts the court erred in placing this case on the dismissal docket where (1) the records of the court showed diligence in prosecuting the suit, (2) there had been no motion filed by defendants suggesting a failure to prosecute the case with diligence, and (3) there had been no motion contending defendants had been prejudiced by a failure to set the case. In her second point, appellant contends the court’s dismissal of the suit was a violation of due process of law in that there was no evidence offered to support the trial court’s implied finding that plaintiff had abandoned her suit or had failed to use diligence in prosecuting it. But these points complain of error prior to the dismissal for want of prosecution and are immaterial to this appeal.

It is clear from the records on file that plaintiff’s counsel was diligently prosecuting this case. The only reason the case was placed on the drop docket was that it had been on file for more than two years. The Galveston County drop docket procedure has received much judicial scrutiny. Southern Pac. Transp. Co. v. Stoot, 530 S.W.2d 930 (Tex.Sup.1975), reversing 527 S.W.2d 765 (Tex.Civ.App.-Houston [14th Dist.]); Kelly v. Holbrook, Docket No. 1571 (Tex.Civ.App.-Houston [14th Dist.], April 20, 1977, no writ) (unreported); Sandstrum v. Magruder, 510 S.W.2d 388 (Tex.Civ.App.-Houston [1st Dist.] 1974, writ ref’d n.r.e.). This court, in Stoot, questioned the wisdom of creating a presumption of failure to prosecute a suit where it had been on file only three years. 527 S.W.2d at 768. (That rule has now been amended to provide for placement on the drop docket two years after filing.) We recall also the dictum of Justice Critz, that a case should not be dismissed on the ground of abandonment unless abandonment clearly appears. Loftus v. Beckmann, 1 S.W.2d 268, 270 (Tex.Comm’n App. 1928, jdgmt adopted). This court still does not favor a procedure whereby a case is arbitrarily placed on a dismissal docket after two years, without regard to the complexity of the case, the amount of discovery required, or the diligence of the lawyer in prosecuting it. But the supreme court, in Stoot, approved the procedure of the Galveston County district courts, appellant’s counsel had notice of the local rule, and the court followed it.

Texas Rules of Civil Procedure 165a provides that within 30 days after the signing of the order of dismissal, the court must reinstate the case upon finding, after hearing, that the failure of the party or his attorney which brought on the dismissal was not intentional or the result of conscious indifference but was due to accident or mistake. Appellant’s counsel claims not to have received notice of the dismissal until some five months after the signing of the order and thus did not request such a hearing at which he could have shown diligence in prosecuting the case. That hearing was appellant’s sole vehicle for airing those issues. The only points of error now remaining for our consideration are those dealing with the legal and factual sufficiency of the evidence to support the trial court’s finding.

After the expiration of 30 days from the dismissal of the case for want of prosecution, a court may reinstate it when, after a hearing, the court finds that neither the party nor his attorney received a mailed notice or actual notice of either the court’s intention to dismiss or the order of dismissal prior to 20 days after the signing of the order. Tex.R.Civ.P. 165a. This hearing must be held, and the case must be reinstated, if at all, within 30 days after the party or his attorney first received either mail notice or actual notice, but not later than six months after the date of signing the order of dismissal. Caddell v. Gray, 544 S.W.2d 481, 483 (Tex.Civ.App.-Waco 1976, no writ); Riley v. Mead, 531 S.W.2d 670, 672 (Tex.Civ.App.-El Paso 1975, no writ); Cosper v. Aetna Life & Cas. Co., 513 S.W.2d 121, 122 (Tex.Civ.App.-Dallas 1974, no writ); Tex.R.Civ.P. 165a.

Appellant had such a hearing, at which the trial court found her counsel had notice of the dismissal and/or the court’s intention to dismiss within 20 days after the case was dismissed. There was a question of fact presented and even though, under all the circumstances of this case, we might have been inclined to hold in favor of appellant, the trial court held otherwise. The court could have based this finding upon Hornbuckle’s testimony that he told Holloway of the case being put on the drop docket on August 11, which was 16 days before the case was dismissed. It could have also based its finding upon the testimony of the judge’s secretary that the notices were mailed and the testimony of defendants’ counsel that they received notices. As to the second basis of the court’s finding, proof of mailing a properly addressed and stamped postcard gives rise to a rebut-table presumption that the postcard was duly received by the addressee. The testimony of appellant’s counsel and his associate and secretary that the notices were never received cannot be held to be so clear, positive, and disinterested as to overcome the inferences flowing from the fact of mailing. Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 455-58, 159 S.W.2d 854, 857-58 (1942). Accordingly, we overrule appellant’s points of error three through nine, attacking the trial court’s finding as erroneous as a matter of law and against the great weight and preponderance of the evidence.

On oral argument, counsel for appellant urged the position that notice of the dismissal must be sent to the plaintiff directly, not just to plaintiff’s counsel. We disagree. Rule 165a provides that notice of the signing of the order of dismissal shall be given as provided in rule 306d. Rule 306d requires notice of any final judgment or other appealable order be sent by postcard to each party as provided in rule 21a. Rule 21a states that notice may be sent to the party, his agent, or attorney of record.

The order of the trial court overruling appellant’s motion to reinstate the case is affirmed.


source: Caselaw Access Project

author: KLINGEMAN, Justice.

license: Public Domain

text:
    James C. ROGERS, Individually and d/b/a Futura Leasing, Appellant, v. J. D. THOMPSON, Individually and d/b/a Caesar’s II Club, Appellee.
    No. 15829.
    Court of Civil Appeals of Texas, San Antonio.
    July 20, 1977.
    James R. Bass, San Antonio, for appellant.
    Thomas G. Sharpe, Jr., Brownsville, for appellee.
   KLINGEMAN, Justice.

This is an appeal from an order of the district court of Bexar County, Texas sustaining appellee’s plea of privilege and ordering that the records and papers in said cause be transferred to the district court of Cameron County, Texas. Appellant, James C. Rogers, Individually and d/b/a Futura Leasing, filed suit in Bexar County, Texas for rentals allegedly due under a written lease providing for monthly rental payments for the use of three Triton III Pre-cipitators, “Smoke Eaters”. Appellee filed a plea of privilege to be sued in Cameron County, the county of his residence. Appellant timely controverted such plea, asserting that venue is properly maintainable in Bexar County under Sub. 5, Art. 1995, Tex. Rev.Civ.Stat.Ann. (1964). The trial court after a hearing sustained appellee’s plea of privilege. There is no statement of facts in the record.

Article 1995,- Sub. 5 provides in part as follows: “(5) Contract in writing. — (a) Subject to the provisions of Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

As essential venue fact under this subdivision is that defendant has contracted in writing to perform the specific obligation sued on in the county of suit, expressly naming that county or a definite place therein in the contract. Kaufmann v. McKissack, 446 S.W.2d 329 (Tex.Civ.App.—Waco 1969, no writ); 1 McDonald, Texas Civil Practice (1965) 4.11.1.

By one point of error appellant asserts that the trial court erred in sustaining ap-pellee’s plea of privilege to be sued in Cameron County, Texas, since the lease on its face shows the appellee was obligated to perform at a definite place, to wit, the office of lessor, Futura Leasing, thus complying with Sub. 5, Art. 1995, Tex.Rev.Civ.Stat.Ann., and the lease shows from its four corners that lessor’s office is located in San Antonio, Texas, which is within Bexar County, the county of suit.

The particular portion of the contract here involved reads as follows: “(1) RENTAL. As rental for the equipment, lessee agrees to pay to lessor, during the initial term of this lease, the rental payment as specified under Monthly Rental Payments above . . . . Payment of said rental shall be made in advance on the dates specified at the office of lessor, FUTURA LEASING or to such other person, firm or corporation at such other place as lessor may from time to time designate in writing

Appellee asserts that the written contract in issue does not name the county, city, or place where the payment under the contract is to be made.

It is appellant’s contention that although the lease contract does not definitely name Bexar County, it fixes a definite place therein, the office of lessor, and that venue is sustainable in Bexar County under Sub. 5 because his office is in San Antonio, which is in Bexar County. In his brief, he cites and relies on such cases as Cities Service Oil Company v. Brown, 119 Tex. 242, 27 S.W.2d 115 (Tex.Comm’n App.1930); and Harrison v. Nueces Royalty Company, 163 S.W.2d 244 (Tex.Civ.App.—San Antonio 1942, writ dism’d).

In Cities Service v. Brown, Brown promised to pay “at the principal office of the company.” Evidence at the hearing on the plea of privilege located the principal office in Fort Worth, Tarrant County, Texas. The Court held that even though parol proof was necessary to identify the place where payment was agreed to be made, Sub. 5 applied, and that Brown’s plea of privilege should have been overruled. In Harrison, the promissory note provided that payment under the contract in question was to be made “at the office of Nueces Royalty Company”. By stipulation it was agreed that the principal and only office of the Company was in Nueces County, Texas. This was held sufficient to fix venue in Nueces County, Texas. We have no quarrel with these cases.

Appellant overlooks a portion of the contract here involved. The contract provides that payments were to be made monthly at the office of lessor, Futura Leasing, or at such other place as lessor may from time to time designate in writing (emphasis ours). There are a number of Texas cases involving this type of provision.

A case directly in point is Yell v. Prock, 238 S.W.2d 238 (Tex.Civ.App.—Fort Worth 1951, writ dism’d). The suit there was on a promissory note that was payable “to the order of the General Distributing Company, 2814 Main Street, Dallas, Texas, or at such other place as the holder thereof may from time to time in writing appoint.” Suit was brought in Dallas County, and defendant filed a plea of privilege to be sued in the county of his residence. The court held: “The holder of the note is not entitled to maintain venue in Dallas County under the above quoted provision. The contract did not, at the time of its execution, require performance in any particular county, but left the matter open, to be determined at some future time at the will and pleasure of the holder of the note.”

Other cases in point and along this same line are: Dowd v. Dowd, 359 S.W.2d 287 (Tex.Civ.App.—Texarkana 1962, writ dism’d); W. T. Rawleigh Company v. Cooper, 111 S.W.2d 776 (Tex.Civ.App.—El Paso 1937, no writ); W. T. Rawleigh Company v. Karnes, 103 S.W.2d 431 (Tex.Civ.App.—Texarkana 1937, no writ); McManus v. Texas Development Bureau, 73 S.W.2d 655 (Tex.Civ.App.—Dallas 1934, no writ); Turner v. Ephraim, 28 S.W.2d 608 (Tex.Civ.App.—El Paso 1930, no writ).

In Turner v. Ephraim, supra, the Court stated: “ . . .in our opinion the words ‘a particular County,’ as used in Subdivision 5 of Art. 1995, R.S., contemplate and mean a county fixed and certain at the time the contract is executed and not a county subject to change by subsequent events within the control of the obligee. A contract of the latter nature is wholly uncertain as to the county in which it is to be performed and certainly not within the spirit of Subdi-visión 5.”

It must be remembered that this case is before us without a statement of facts. In the absence of a statement of facts a reviewing court must presume that the evidence sufficiently supports the findings and judgment of the trial court. Finley v. Finley, 410 S.W.2d 818 (Tex.Civ.App.—Tyler 1966, writ ref’d n. r. e.); Household Finance Corporation of Dallas v. Reyes, 408 S.W.2d 739 (Tex.Civ.App.—Texarkana 1966, writ dism’d); Thrasher v. Hensarling, 406 S.W.2d 515 (Tex.Civ.App.—Waco 1966, no writ); Gamble v. State, 405 S.W.2d 384 (Tex.Civ.App.—Eastland 1966, no writ); Hilliard v. Messina, 404 S.W.2d 824 (Tex.Civ.App.—Eastland 1966, no writ).

We have concluded that the trial court correctly sustained appellee’s plea of privilege. The herein contract involved nowhere names or mentions Bexar County, Texas. There is no evidence or proof in the record that appellant’s principal office or any office is in Bexar County, Texas. There is no evidence in the record that lessor ever made a designation in writing designating a place of payment other than that provided for in the contract. Moreover the contract did not, at the time of its execution, require performance in any particular county, but left the matter open, to be determined at some future time at the will and pleasure of the holder of the note. There is nothing in the written contract or the entire record establishing appellant’s right to sue appellee in Bexar County, Texas.

The trial court did not err in granting appellee’s plea of privilege. The judgment is affirmed.

      . “The venue facts (for Subdivision 5) are: (I) that the defendant is party reached by the statute; (II) that the claim is based on a written contract; (III) that the contract was entered into by the defendant or by one authorized to bind him, or was assumed or ratified by him; (IV) that the contract by its terms provides for performance of the obligation sued upon in the county of suit.”


author: CADENA, Justice.

text:
    A_Y_, Appellant, v. The STATE of Texas, Appellee.
    No. 15863.
    Court of Civil Appeals of Texas, San Antonio, Texas.
    July 20, 1977.

      Dinah Denson Gaines, San Antonio, for appellant.
    Ben Steinhauser, Asst. Criminal Dist. Atty., San Antonio, for appellee.
   CADENA, Justice.

Appellant, a juvenile, appeals from an order of the juvenile court of Bexar County revoking probation previously granted him and committing him to the care, custody and control of the Texas Youth Council.

On August 24, 1976, the juvenile court entered judgment, based on a petition alleging that appellant had committed the offense of burglary, finding that appellant had engaged in delinquent conduct and committing him to the care, custody and control of his mother, under supervision of the Chief Juvenile Officer of Bexar County, for a period of one year, with provision for extension of the period of probation for additional one-year terms not extending beyond the date of his 18th birthday. The grant of probation was subject to several conditions, the first of which provided that appellant “not violate any of the laws of the United States, the State of Texas, or any political subdivision of the State of Texas.”

On November 11, 1976, the State, as authorized by Tex. Family Code Ann. § 54.-05(d) (1975), filed a motion to modify the prior disposition, alleging that appellant had committed the offense of burglary on September 23, 1976. After a hearing, the juvenile court entered the order of which appellant complains. The order recites that the court finds that the evidence “is sufficient, beyond a reasonable doubt to support the allegations of the motion [to modify disposition] alleging [sic] that [appellant] did violate provision number one of the judgment entered on August 24, 1976

One of appellant’s contentions is that the order appealed from does not comply with the requirement, embodied in § 54.05(i) of the Family Code, that an order modifying a prior disposition “shall specifically state . [the] reasons for modifying the disposition . . .

Our attention has been called to no cases construing § 54.05(i). However, this section is, except for the presence of the word “modifying,” identical to the language found in § 54.04(f) of the Family Code, which sets out the requirements of a disposition order. In Matter of TRW, 533 S.W.2d 139, 141 (Tex.Civ.App.-Dallas 1976, no writ), it was held that § 54.04(f), which requires a specific statement of the reasons for the disposition, makes it necessary that the modifying order contain a specific recital of the offense committed by the child. Cf. In re J. R. C., 522 S.W.2d 579, 583 (Tex.Civ.App.—Texarkana 1975, writ ref’d n. r. e.), relating to the requirement, found in § 54.02(h) of the Family Code, that where a juvenile court “waives” its jurisdiction and certifies a child for trial as an adult, the order state specifically the reasons for the waiver.

The State here urges that since the challenged order refers to the first condition embodied in the judgment of August 24, 1976, and such original disposition order sets out fully the provision in question, there is no problem. We disagree. In TRW, supra, the disposition order was embodied in the same instrument which contained the adjudicatory finding that the child had engaged in delinquent conduct. The adjudicatory portion of the judgment specifically named the offense involved. Yet the Dallas Court of Civil Appeals said, “This statement of the offenses in an order of adjudication, even though combined in the same document with the order of disposition, does not constitute a specific statement of the reasons for disposition

A statement to the effect that the court finds that the child has violated a reasonable and lawful order of the court does no more than track the statutory language of § 54.05(f). In Matter of ANM, 542 S.W.2d 916, 919 (Tex.Civ.App.—Dallas 1976, no writ), it was said that the use of the word "specifically” in § 54.04(f) “emphasizes that the legislature intended the court to do more than merely track the statutory language.”

We conclude that the order in this case does not comply with the requirements of § 54.05(i). But we do not agree with appellant’s contention that this infirmity requires that the judgment below be reversed and the cause remanded for new trial.

In ANM, supra, the Court reversed the judgment because of the defect in the order and remanded the case for new trial. However, in that case, the Court of Civil Appeals also concluded that, under the facts and circumstances there present, the trial court had erred in failing to order a medical and psychiatric study of the child to assist in the determination of whether the child was responsible for its conduct, as required by § 55.05(b) of the Family Code.

In J. R. C., supra, the Texarkana Court of Civil Appeals, without discussing possible alternative methods of dealing with the problem, reversed the judgment of the Juvenile court and remanded the cause for new trial.

The disposition in TRW, supra, is somewhat unusual. In the opinion the Court said: “Consequently we reverse the order of disposition and remand the disposition matter to the trial court with instructions to enter a proper order in accordance with this opinion. We leave to the trial court’s discretion whether further evidence will be heard or a new disposition hearing required. The court may also decide whether to make the same or a different disposition. Regardless of whether the court decides to hear additional evidence, it is instructed to enter an order stating specifically the reasons for the disposition, and this order will be subject to further appeal and review by this court.” 533 S.W.2d at 142.

According to Rule 434, Tex.R.Civ.P. (1975) when an order of a trial court is reversed by a Court of Civil Appeals, that Court “shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial.”

This provision appears to preclude the •type of order entered in TRW which, while it purports to “reverse and remand”, attempts to leave to the discretion of the trial court the question of whether a new trial shall be had. That is, the case was not “remanded for a new trial” nor did the appellate court “render such judgment or decree as the court below should have rendered”. Nor is the judgment in TRW compatible with the authorization found in the second paragraph of Rule 434, for partial reversal and remand for a new trial.

We believe that the proper procedure to be followed in this case is that outlined in the last paragraph of Rule 434, which provides that if the erroneous action or failure to act of the trial court prevents “the proper presentation of a cause to the Court of Civil Appeals, and be such as may be corrected by the judge of the trial court, then the judgment shall not be reversed for such error, but the appellate court shall direct the said judge to correct the error, and thereafter the Court of Civil Appeals shall proceed as if such erroneous action or failure to act had not occurred.”

In the absence of a specific statement of the reasons for modifying the prior disposition, we are unable to determine whether the record before us supports the action of the trial court. Under the authority granted by the third paragraph of Rule 434, we hereby direct the trial court to enter an order stating the reasons for its action, as required by § 54.05(i) of the Family Code, and transmit to this Court, on or before August 5, 1977, a properly authenticated copy of such corrected order, after which we shall proceed with the determination of this appeal.


author: MOORE, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Jacklyn M. ALLEN et al., Appellees.
    No. 1029.
    Court of Civil Appeals of Texas, Tyler.
    July 21, 1977.
    Rehearing Denied Aug. 25, 1977.

      Kenzy D. Hallmark, Zeleskey, Cornelius, Rogers, Berry & Hallmark, Lufkin, for appellant.
    Rex Houston, Wellborn & Houston, Henderson, for appellees.
   MOORE, Justice.

This is a workmen’s compensation case. Jacklyn M. Allen, individually and as next friend for her four children (hereafter referred to as plaintiff) brought this suit against Travelers Insurance Company (Travelers) to recover workmen’s compensation insurance as a result of the death of her husband, Donald K. Allen. She alleged that her husband died as a result of a heart attack which was precipitated by “overexertion” while he was working in the course and scope of his employment by Simmons Carpet Company, Inc. The defendant, Travelers Insurance Company, was the workmen’s compensation insurance carrier for Simmons. The deceased was employed by Simmons to sell and install carpets and linoleum. Trial was before a jury. The findings of the jury which are material to this appeal are as follows: (Special Issue No. 1) the deceased was an employee of Simmons Carpet Company, Inc., on November 8, 1973, the date of his death; (Special Issue No. 2) the deceased “overexerted” himself in the course of his employment on November 8, 1973; (Special Issue No. 3) such “overexertion” was a producing cause of deceased’s death.

After having overruled Traveler’s motion for judgment non obstante veredicto, the trial court entered judgment for the plaintiff based on the jury’s verdict. After its motion for new trial was overruled, Travelers perfected this appeal.

We affirm.

Because of the nature of this case a somewhat extended statement of the facts is necessary. The deceased, Donald K. Allen, had been employed by Simmons Carpet Company for a total of about twenty years. During the ten-year period prior to his death, he had managed a store in Henderson, Texas, for Simmons. As part of his job, he was required to install carpet which was sold through the store. The evidence shows that he had not suffered any serious illness for the last few months prior to his death and had no previous symptoms of heart trouble.

The circumstances surrounding the death of deceased were described by Kenneth Trawick, who was employed as deceased’s helper. Trawick testified that on the day of the death of the deceased they were laying carpet on the second floor of a large, two-story house. The particular house had an unusual staircase in that the stairs had ten to twelve inch risers, thus requiring more effort to climb. The staircase was an “L” shaped stairway and therefore it was difficult to carry the large rolls of carpet up to the second floor.

According to Trawick the job of laying carpet was strenuous work requiring the workman to spend 95 percent of his time on his hands and knees working with a device known as a knee kick. The device was used to stretch the carpet and hang it on nails placed on the floor along the edge of the walls of the room. The device was powered by kicking it with the knees. Trawick described the effort necessary to use the device as strenuous. He further stated that to do a large room would require forty or fifty kicks if not more.

In describing the events of the day of deceased’s death, Trawick testified that deceased picked him up about 8:00 a. m. and they proceeded to the job site; that upon arriving at the job site they checked the carpet pads which they had installed on the previous day and they proceeded to unload from their truck the six or seven rolls of carpet which were for the downstairs rooms; that each roll was cut to size for a particular area and weighed between 175 and 250 pounds; that each man then unloaded his own tool box which weighed between 75 and 125 pounds and that they unloaded the 150 pound power stretcher box; that they spent all morning working in the downstairs rooms; that they stopped for lunch at about 11:30 a. m. or noon, having finished all but one of the downstairs rooms; that after they had taken their thirty to forty-five minute lunch break they proceeded to lay carpet in the last downstairs room; and that they next commenced unloading the eight or nine rolls of carpet which would be used in the upstairs rooms. He further testified that the carpet for the upstairs areas was a heavy grade carpet and weighed more than that used downstairs; that the smallest roll to be used upstairs weighed around 150 to 175 pounds and some rolls weighed up to almost 300 pounds: that the task of carrying the carpet upstairs was especially difficult because the 90-degree turn which had to be made on the “L” shaped stairway required a considerable amount of pushing and tugging to get the carpet up the stairs; that the deceased normally was the man m the lead who did most of the pulling; that once all the carpet was upstairs, the men brought their tools upstairs; and that after resting for ten or fifteen minutes they went back to work with the deceased stretching the carpet. Trawick testified that he observed that the deceased was resting again, “sitting on the floor leaning up against the wall smoking a cigarette,” and while sitting there the deceased stated: “I bent down just then and like to never caught my breath.” They went back to work and at a time when Trawiek’s back was turned he heard a bump and turned around and saw the deceased fall to the floor, falling on his knee kick device which struck him near his back and shoulders. He further testified that the deceased seemed to be jerking and clinching his teeth, and that after that time he never saw any further bodily movement. Finally, Trawick testified that he accompanied the deceased to the hospital in an ambulance and despite efforts of first aid while enroute to the hospital, deceased never responded.

Dr. Hanson, who had examined the body of the deceased at Memorial Hospital on the day of death, testified that the deceased was dead on arrival. Dr. Hanson testified that upon examination he discovered that “The [deceased] had already expired, there was no pulse, no heartbeat and the pupils were dilated.” He testified that in his medical opinion, the cause of death was coronary thrombosis, an acute heart attack. He also added that his diagnosis of acute heart attack was based on his observation of the deceased and the history given him by Trawick. In response to a hypothetical question Dr. Hanson testified that in his opinion the strain on the deceased from the carpet laying precipitated or materially helped to precipitate the heart attack.

Dr. James Mann, testifying in response to hypothetical questions, testified that in the medical profession it was recognized that strain and “overexertion” can precipitate heart attacks. He stated that it was his opinion in all reasonable medical probability that the diagnosis made in the emergency room “is probably the nearest thing to the facts that we have at hand” and that an acute heart attack was the number one choice out of four possibilities that could have happened. He also testified that in reasonable medical probability the acute heart attack was caused by the stress and strain that the deceased underwent a few hours prior to his death. On cross-examination Dr. Mann described the mechanics of several other possible causes of death such as blood clot in the lungs, aneurism or stroke. He testified that the most common type of heart attack is a blockage of the coronary blood vessel that supplies blood to the heart which causes muscle damage to the heart known as ventricular fibrillation. He stated that he based his opinion on two things: (1) that blockage of the coronary blood vessel leading to ventricular fibrillation is the most common type of heart attack; and (2) on the history of the patient which was given to him. Finally, Dr. Mann testified that there is no 100 percent sure way to know what caused the death of an individual unless an autopsy is performed and, therefore, any other diagnosis of the cause of death must be based on the odds and statistics compiled from the records of many thousands and thousands of cases in previous years which have been autopsied. It was still his opinion, however, that the death resulted from a heart attack and that the stress of the work done by the deceased was a precipitating factor.

By its first point of error, Travelers contends the court erred in overruling its motion for judgment non obstante veredicto because there is no evidence to support the jury’s answers to Special Issue No. 3 finding that “overexertion” was the producing cause of deceased’s death. The question presented is whether there was any evidence of probative force to support the jury’s answer to Special Issue No. 3. In determining this question, we must view the evidence in support of the jury’s findings in its most favorable light considering only the evidence and reasonable inferences to be drawn therefrom which support the findings and rejecting the evidence and inferences contrary to such findings. Miller v. Riata Cadillac Co., 517 S.W.2d 773 (Tex.1974); Transport Ins. Co. v. Mabra, 487 S.W.2d 704 (Tex.1972).

Under this point Travelers takes the position that the jury’s finding that “overexertion” was a producing cause of death is not supported by any evidence but rather, is based on a presumption upon a presumption. Travelers first says that the jury’s finding is based on presumption that the deceased suffered a heart attack. Next, it says that the finding is based on a second presumption that “overexertion” caused the heart attack and on a third presumption that the heart attack was a producing cause of death. This is not the first time such argument has been advanced where an employee died of a heart attack. The contention, however, has been repeatedly rejected by the courts as being unsound. See Henderson v. Traveler’s Ins. Co., 544 S.W.2d 649 (Tex.1976); Texas Employers’ Ins. Ass’n v. Talmadge, 256 S.W.2d 945, 952 (Tex.Civ.App.—Beaumont 1953, writ ref’d n. r. e.); Southern Underwriters v. Hoopes, 120 S.W.2d 924, 926 (Tex.Civ.App.—Galveston 1938, writ dism’d).

It is well established that “overexertion” or strain causing a heart attack is an accidental injury to the physical structure of the body within the meaning of the Workmen’s Compensation Act. Henderson v. Travelers Ins. Co., supra; Baird v. Texas Employer’s Ins. Ass’n, 495 S.W.2d 207, 211 (Tex.1973). Proof thereof, occurring in the course of employment, is sufficient to show a causal connection between the injury and the employee’s death resulting from such heart attack. Hartford Accident and Indemn. Co. v. Olson, 466 S.W.2d 373, 376 (Tex.Civ.App.—El Paso 1971) aff’d 477 S.W.2d 859 (Tex.1972); Standard Fire Ins. Co. v. Sullivan, 448 S.W.2d 256, 257 (Tex.Civ.App.—Amarillo 1969, writ ref’d n. r. e.); Aetna Cas. & Surety Co. v. Calhoun, 426 S.W.2d 655 (Tex.Civ.App.—Beaumont 1968, writ ref’d n. r. e.); Midwestern Ins. Co. v. Wagner, 370 S.W.2d 779, 783 (Tex.Civ.App.—Eastland 1963, writ ref’d n. r. e.). From the very nature of cases of this sort, the evidence is most often largely circumstantial or based on answers by medical witnesses to hypothetical questions. Baird v. Texas Employers’ Ins. Ass’n, supra; Standard Fire Ins. Co. v. Sullivan, supra. There is ample testimony that the deceased “overexerted” himself shortly before death. There is also ample medical testimony that he had a heart attack and that the heart attack was a producing cause of death. In situations such as this, where the record contains expert or opinion evidence tending to support a finding, it cannot be said that the finding rests upon an inference. Southern Underwriters v. Hoopes, supra. While Special Issue No. 3 was not fragmented so as to inquire as to whether the deceased suffered a heart attack and whether the heart attack was a producing cause of death, we think there was ample evidence of probative force to support the jury’s finding upon the much broader issue inquiring whether “overexertion” was a producing cause of death. We cannot agree with Travelers’ contention that the opinions of the two medical witnesses who testified that the deceased suffered a heart attack were without probative force for lack of factual data on which they were based. Accordingly, travelers’ first point is overruled.

Under its seventh point Travelers asserts that the court erred in refusing to disregard Special Issue No. 2 and refusing to enter judgment in its favor for the reason that there was no evidence to support the submission of Special Issue No. 2, inquiring as to whether the deceased “overexerted” himself in the course of his employment. We find no merit in this point.

The witness, Kenneth Trawick, who worked with the deceased on the date of his death, described the work which the deceased was doing at the time of his death. The testimony in this regard has already been delineated and will not be repeated. We are of the opinion that the testimony was sufficient to support the submission of the issue to the jury. Travelers’ seventh point is overruled.

By its second, third, ninth and tenth points of error, Travelers contends that the evidence was factually insufficient to support the jury’s answer to Special Issues Nos. 2 and 3. After a review of the entire record and after weighing and balancing all of the evidence, both that in favor of as well as that against the judgment, as we are required to do when determining the question of factual insufficiency, we hold that the jury’s findings on Special Issues Nos. 2 and 3 were not based upon factually insufficient evidence and were not against the overwhelming weight and preponderance of the evidence. Accordingly, Travelers’ second, third, ninth and tenth points of error are overruled.

Under the fifth and eighth points of error Travelers complains that the court erred in refusing to grant its motion for judgment non obstante veredicto on the ground that there are no pleadings to support the submission of Special Issues Nos. 2 and 3. In this connection Travelers contends that the finding that the deceased “overexerted” himself and that such “overexertion” was the producing cause of his death, is not supported by the pleadings because nowhere in the plaintiff’s pleadings has it alleged that the deceased “overexerted” himself. We find no merit in these points.

Plaintiff alleged in her pleadings that: “This is a death claim arising out of fatal injuries to Mr. Allen on November 8, 1973, while working for his employer, Simmons Carpet Company, Inc., in the scope and course of his employment. . . . His injury was in the form of an acute and severe strain to his heart and its surrounding muscles, ligaments and vessels, producing an acute myocardial infarction . ..”

The record reveals that Travelers objected to the charge on the ground that there was no pleading to support the submission of an issue inquiring as to whether the deceased “overexerted” himself. However, the objections and exceptions to the court’s charge gear no notation showing that they were presented to the trial judge and there is no ruling endorsed thereon as required by Rule 272, Tex.R.Civ.P. Hence, the purported objection cannot be considered. Gowan v. Reimers, 220 S.W.2d 331, 337 (Tex.Civ.App.—Fort Worth 1949, writ ref’d n. r. e.). In any event, travelers does not attempt to demonstrate how the error, if any, could have resulted in any harm to appellant and we fail to see any. Rule 434, Tex.R.Civ.P. Travelers’ fifth and eighth points are overruled.

By its fourth and sixth points Travelers contends that the court erred in refusing to disregard the jury’s findings on Special Issues Nos. 2 and 3 and grant its motion for judgment non obstante veredicto because the finding that deceased “overexerted” himself and the finding that “overexertion” was a producing cause of his death are superfluous and not sufficient to support the judgment. Based on this premise Travelers argues that the court erred in rendering judgment on the remaining findings because there was no jury finding (1) that the deceased suffered a “heart attack”; (2) caused by “overexertion”; and (3) that such was a producing cause of death.

Under the record before us, we do not believe that a failure to obtain such jury findings precluded the rendition of a judgment. The jury found (1) the deceased was an employee; (2) that he “overexerted” himself; (3) that such overexertion was a producing cause of death; (4) the amount of the funeral expenses; (5) that he had worked in the same employment for at least 210 days prior to his death; and (6) the amount of his average daily wage.

While there are no jury findings that the deceased suffered a heart attack or that the heart attack was caused by “overexertion,” findings on these issues would constitute only two of the necessary elements required to establish a cause of action under the Workmen’s Compensation Act.

Rule 279, Tex.R.Civ.P., provides in substance that where a ground of recovery consists of more than one issue, if one or more of these issues necessary to sustain such ground of recovery are submitted to and answered by the jury and one or more of such issues are omitted, without objection, and there is evidence to support a finding thereon, such issue or issues shall be deemed as found by the court in such manner as to support the judgment.

Travelers has no point of error complaining of the court’s charge on the ground that the court erred in refusing, over its objection, to submit to the jury special issues inquiring as to whether the deceased suffered a heart attack and whether the same was caused by “overexertion.” Travelers is therefore deemed to have waived its right tt> complain of the judgment on the ground that the verdict did not contain findings on all fact issues. Rule 272, supra.

The judgment recites: “Now, upon Motion of the plaintiff for Judgment upon the verdict and upon such other findings as the Court is authorized to make, the Court does render judgment herein.” Since there were jury findings on one or more issues necessary to sustain a recovery and there is evidence of probative force to sustain a finding on the omitted issues that the deceased suffered a heart attack caused by “overexertion,” and that the heart attack caused his death, the alleged omitted issues must be deemed to have been found by the trial judge in such a manner as to support the judgment. Rule 279, supra. Consequently, even if the jury’s findings, standing alone, were insufficient to support a judgment, such findings when taken together with the court’s implied findings were sufficient to authorize entry of judgment on the verdict. Appellant’s points four and six are accordingly overruled.

The judgment of the trial court is affirmed.


text:
    INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 883, et al., Appellants, v. FIREMEN’S AND POLICEMEN’S CIVIL SERVICE COMMISSION, Appellee.
    No. 1034.
    Court of Civil Appeals of Texas, Tyler.
    July 21, 1977.

      Gordon C. Tyner, Tyner & Tyner, Tyler, for appellants.
    Robert R. Schwartz, Acting City Atty., Tyler, for appellee.
   MOORE, Justice.

Plaintiffs, International Association of FireFighters, Local 883 and Bennie Reed, individually, filed suit against the Firemen’s and Policemen’s Civil Service Commission of the City of Tyler, Texas (Commission), seeking an injunction permanently restraining the Commission from abiding by the results of a promotional examination given on August 4, 1974, for the purpose of filling the position of Assistant Fire Marshal. Plaintiffs alleged that the procedure adopted in conducting the examination was irregular and void because the Commission failed to follow the procedure outlined by Section 8 of the City’s Civil Service Rules and Article 1269m, Tex.Rev.Civ.Stat.Ann. Plaintiffs prayed for a permanent injunction and for an order to compel the Commission to conduct another examination in accordance with the Civil Service Rules promulgated by the City. The Commission answered with a general denial and moved for a summary judgment. After a hearing the trial court granted the Commission’s motion for summary judgment and entered a take nothing judgment against plaintiffs from which they perfected this appeal.

We affirm.

The record is before us upon the following stipulations of fact: (1) On or about May 13, 1974, notice was given to the personnel of the Tyler Fire Department that an examination would be held to fill the position of Assistant Fire Marshal; (2) Notice of the examination stated that the examination would be open to those holding the position of Captain; (3) On May 24, 1974, there were three Captains in the Fire Department eligible to take the examination for the position of Assistant Fire Marshal; (4) No one applied to take the examination to be given on May 24,1974; (5) On or about May 22, 1974, a second notice was given to the personnel of the Tyler Fire Department that an examination would be held to fill the position of Assistant Fire Marshal; (6) Notice of the examination stated that the examination would be open to those holding the positions of Captain or Lieutenant; (7) On June 7,1974, there were three Captains and fourteen Lieutenants in the Fire Department eligible to take the examination for the position of Assistant Fire Marshal; (8) Only one applicant applied to take the examination; (9) The examination was given to the one applicant on June 7, 1974, and the applicant failed to qualify by making the minimum grade of 70 points; (10) On June 27,1974, notice of a new examination was posted, again opening the examination to the classifications of Captain or Lieutenant; (11) Pursuant to Rule XI, Section 1 of the Rules and Regulations of the Firemen’s and Policemen’s Civil Service Commission, the examination posted on or about June 27,1974, was postponed to a later date; (12) On or about August 9, 1974, notice of a new examination was posted, again opening the examination to the classifications of Captain or Lieutenant; (13) On August 22,1974, three Captains and fifteen Lieutenants were eligible to take the examination for the position of Assistant Fire Marshal; (14) Only one applicant applied to take the examination; (15) The examination was given to the one applicant on August 22, 1974; (16) The applicant taking the August 22, 1974, examination passed the examination by making a grade in excess of 70 percent; (17) Thereafter, the applicant was appointed by the Fire Chief of the City of Tyler, Texas, to fulfill the position of Assistant Fire Marshal; and (18) On or about August 2,1974, the position of Assistant Fire Marshal, Tyler Fire Department, was officially created.

Article 1269m, supra, provides that the Commission shall make rules and regulations governing promotions and shall hold competitive promotional examinations to provide eligibility lists for each classification in the Police and Fire Department. The statute reads, in part, as follows:

“See. 10. When a vacancy occurs in the Fire Department . . ., the Fire Chief or head of the Fire Department shall request in writing from the Commission the names of suitable persons from the eligibility list, and the Director shall certify to the chief executive of said city, the names of three (3) persons having the highest grades on the eligibility list, and the said chief executive shall thereupon make an appointment from said three (3) names. . (Emphasis supplied.)
“Sec. 14A. All promotional examinations shall be open to all policemen and firemen who have held a continuous position for two (2) years or more in the classification immediately below in salary of that classification for which the examination is to be held; except where there is not a sufficient number of members in the next lower position with two (2) years service in that position to provide an adequate number of persons to take the examination, the Commission may extend the examination to the members in the second lower position in salary to that for which the examination is to be held.” (Emphasis supplied.)

Section 8 of the City’s Firemen’s and Policemen’s Civil Service rules implements Sec. 14 A of the statute and provides, in part, as follows:

“All promotional examinations shall be opened to a minimum of three persons for one appointment, five persons for two appointments, six persons for three appointments, etc., in accordance with the certification requirements for original positions. No person who has filed with the Civil Service Director a written withdrawal from the examination shall be counted as one of those eligible.
“Where there is a sufficient number of applicants as outlined above with two years’ service in the rank immediately below that to be filled, the examination shall be limited to those persons. If there is not a sufficient number with two years’ service to provide an adequate number eligible to take the examination, then said examination shall be opened to any person in the rank next below who has satisfactorily completed the six months’ probationary period in that rank.
“Any promotional examination shall be opened to as many ranks as may be necessary to provide an adequate number of persons eligible to take the examinations.”

By a single point of error plaintiffs contend that the trial court erred in rendering a summary judgment in favor of the Commission. They take the position that since only one qualified applicant desired to take the examination, the Commission was required by virtue of the provision of Article 1269m, supra, as well as the City’s Civil Service Rules, to open the examination to Drivers, which was the next classification below Lieutenant. Consequently, they argue that the Commission exceeded its authority in ordering the examination and for this reason the order was invalid. Therefore, they maintain that they were entitled to an injunction as a matter of law requiring the Commission to order a new examination opening the same to Drivers. In support of their contention they rely on the decision in Stahl v. City of Houston holding that under the provisions of Article 1269m, supra, unless there are three or more qualified applicants desiring to take a Civil Service examination, the order calling the examination is invalid.

We are not in accord with the proposition that plaintiffs have shown themselves to be entitled to injunctive relief as a matter of law because of the holding in Stahl. Assuming, without deciding, that the order of the Commission in the present case was invalid because of the holding in Stahl, plaintiffs still had the burden of showing that they, as party plaintiffs, had some justiciable interest in the matter and suffered some injury.

It is elementary that in order to justify the granting of an injunction it must be shown that some damage or injury will result to the complaining party. In other words, the plaintiff must show that he will be injured by the defendant’s act. Haden Employees’ Ass’n v. Lovett, 122 S.W.2d 230, 232 (Tex.Civ.App.-Galveston 1938, writ ref’d); See 31 Tex.Jur.2d Injunctions Sec. 17, p. 58. In the case of General Tire & Rubber Co. v. Texas Pacific Coal & Oil Co., 102 S.W.2d 1086, 1089 (Tex.Civ.App.—Forth Worth 1937, writ ref’d), the court pointed out that a proceeding for injunction, being purely equitable, may be maintained only by one who shows a clear right and certain injury that will reasonably flow from interference with such rights. See also Cain v. Trueheart, 12 S.W.2d 239, 241 (Tex.Civ.App.—San Antonio 1928, writ dism’d).

Nowhere in their pleadings do plaintiffs alleged that they have suffered any injury or will suffer injury in the event an injunction is not granted. Moreover, the record is devoid of any proof whatever showing how or why the giving of the examination to only one applicant adversely affected their rights. Plaintiff, Bennie Smith, does not alleged in his petition or contend in his brief that he was an eligible Driver and that the action of the Commission deprived him of a right to take the examination and there is nothing in the record showing that the action of the Commission adversely affected any right of the International Association of Fire Fighters. In short, there is nothing in the record to show that either plaintiff had any interest in the matter.

In order for a party to be entitled to an injunction, the right sought to be protected must be an existing one and must be a legally cognizable and justiciable right or interest. See 31 Tex.Jur.2d Injunctions sec. 19, p. 62. In the absence of any proof establishing a justiciable interest, no actionable injury could have resulted to the plaintiffs.

Where the defendant, as here, files a motion for summary judgment, the question to be determined is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). Upon applying the foregoing rule to the facts here, the summary judgment proof obviously establishes that there is no genuine issue of a material fact on one or more elements of plaintiffs’ cause of action. It follows that the appel-lee was entitled to a judgment as a matter of law.

The judgment of the trial court is affirmed.

      . 397 S.W.2d 318 (Tex.Civ.App.—Houston 1965, writ refd n. r. e.).


author: DUNAGAN, Chief Justice.

text:
    David H. BROWN, Appellant, v. Murph WILSON, Appellee.
    No. 1037.
    Court of Civil Appeals of Texas, Tyler.
    July 21, 1977.

      Tohnie E. Hynds, David H. Brown, Sherman, for appellant.
    James W. Knowles, Wilson, Miller, Spi-vey, Sheehy, Knowles & Hardy, Tyler, for appellee.
   DUNAGAN, Chief Justice.

This is a libel suit instituted by appellant, David H. Brown, against appellee, Murph Wilson, based on an advertisement placed in a Tyler newspaper by appellee. Appellee filed a motion for summary judgment which was granted by the trial court.

Appellant is an attorney and former District Judge of the 59th Judicial District of Texas who became a candidate for the Fourth Congressional District of Texas. Appellee Murph Wilson is an attorney in Tyler, Texas. During the time Judge Brown was presiding as Judge of the 59th Judicial District Court certain controversies arose with the result that Judge Brown, the appellant, was censured by the Supreme Court of Texas. On April 30,1976, one day prior to the primary election held on May 1, 1976, appellee caused to be published a political advertisement in the Tyler Morning Telegraph newspaper by appellee.

Thereafter on July 23, 1976, appellant instituted this suit in the 7th Judicial District Court of Smith County against the appellee on the basis that such political advertisement was a malicious, false representation of the truth and as such constituted a defamation. Appellee defended on the basis that the statements in said advertisement were true quotations and as such constituted a complete defense. Appellee then moved for summary judgment under art. 5431, V.A.C.S., which was granted by the trial court.

Appellee attached to his motion for summary judgment a copy of the alleged libelous publication, a certified copy of the proceedings in the Supreme Court styled “In the matter of David H. Brown ” and a copy of the opinion published in In Re Brown, 512 S.W.2d 317 (Tex.).

Appellant failed to file any counter-affidavits or other summary judgment evidence in opposition to that on file herein by appel-lee.

Based upon the pleadings on file, the summary judgment evidence filed by appel-lee and the court’s review of the authorities, the trial court rendered judgment in favor of appellee granting the motion for summary judgment. From the action of the trial court in granting said motion for summary judgment, appellant has appealed.

Appellant’s points of error are as follows:

1. The trial court erred in granting summary judgment for appellee on the basis of Tex.Rev.Civ.Stat.Ann. art. 5431 as the advertisement is not truthful or substantially truthful such as would constitute a defense to the libel action, and
2. The trial court abused its discretion in deciding the case summarily as fact issues remain which must be decided in a full trial.
A. The publication complained of is ambiguous and thus is a fact issue for consideration in trial.
B. Appellee has not satisfied the summary judgment burden of proving no fact issues remain.

Appellant argues that the advertisement was such as to lead “the ordinary reader to conclude that the recited findings of the State Judicial Qualifications Commission were adjudged by the Supreme Court of Texas to be true and were the basis for the reprimand or censure thereafter published” when, in fact, “the findings of the State Judicial Qualifications Commission were rejected by the Supreme Court, with the exception of that pertaining to the sanctioned electronic surveillance of a defendant in a capital murder case.” Appellant contends that the advertisement “is libelous in that it presents a completely distorted picture of the actual facts and decision of the Supreme Court of Texas, and as such cannot be a truthful statement which would be a defense under art. 5431 to a libel action.”

The beginning paragraph of the advertisement stated the volume and page (512 S.W.2d 317) where the Supreme Court Opinion styled In re Brown is to be found, and from which the quotations were taken. Then followed certain quotations from the Supreme Court’s opinion which is shown in Footnote 1. The appellee therein clearly states that Judge Brown, the appellant, was not removed from office. This was immediately followed by a direct quotation of the Supreme Court’s opinion that “Judge Brown should be reprimanded, or to use a constitutional term, he should be and is censured.” The statements made in the political advertisement with reference to the findings of the State Judicial Qualifications Commission as stated in the advertisement were direct quotes from the Supreme Court’s opinion.

When appellee quoted from Justice Johnson’s dissenting opinion he specifically so stated that it was a dissent. He closed the advertisement with a statement declaring that the purpose of the advertisement was to inform the people (voters) of Judge Brown’s record to which he believed they were entitled to know.

It has been recently demonstrated in this state that when the electorate is uninformed as to the record and background of a candidate for public office that there can and does result serious and grievous consequences.

The mere fact that the advertisement was published one day before the primary election does not constitute a libelous publication and neither does the fact that the advertisement quoted only a portion of the Supreme Court’s opinion and not the entire opinion. The advertisement is an accurate quote from the court’s opinion. We do not consider the advertisement to be deceptive or misleading nor presenting a distorted picture of the actual facts and decision of the Supreme Court in In re Brown, supra. It is quite obvious that appellee did not have this advertisement published to aid appellant in his campaign for Congress. The general public having been apprised of the facts contained in the advertisement is calculated to and probably did cost appellant some votes. However, this alone does not make the advertisement libelous. Appellant cannot escape the fact that through the action of the State Judicial Qualifications Commission and the Texas Supreme Court he suffered a reprimand and censure based upon a thorough investigation of his activities. In our opinion this is the total and only import communicated by the advertisement at issue in this case. Nevertheless, through an abundance of caution, ap-pellee explained to the general public the fact that the advertisement was not the complete opinion and cites the general public to the location where the entire opinion could be found, and that a portion of the language contained in the opinion came not from the Supreme Court but from the State Judicial Qualifications Commission.

Taking the political advertisement as a whole, it reflects that what is communicated therein is the fact that Judge Brown had been the subject of a judicial proceeding, wherein the State Judicial Qualifications Commission had made certain findings, which findings became public when filed with the Supreme Court. It further reflects that the Supreme Court then reviewed these findings and differed from them to the extent that it found and held that Judge Brown should be censured rather than removed; that Justice Johnson dissented from the majority opinion of the court; and, that the intention of appellee was simply to bring this matter to public attention as a fair and reasonable comment based upon absolute truth and concerning a matter of ultimate public concern. This being true, appellee is protected by art. 5431, V.A.C.S. Moreover, the language is privileged pursuant to art. 5432, sec. 4, V.A.C.S. Also as a matter of fact there is no defamation of appellant pursuant to art. 5430, V.A.C.S. Dudley v. Farmers Branch Daily Times, 550 S.W.2d 99 (Tex.Civ.App.—Eastland 1977, writ filed); Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 811-812 (Tex.1976); Traweek v. Radio Brady, Inc., 441 S.W.2d 240, 243 (Tex.Civ.App.—Austin 1969, writ ref’d n.r.e.); Arant v. Jaffe, 436 S.W.2d 169 (Tex.Civ.App.—Dallas 1968, n.w.h.).

The well established rule is that a summary judgment should be granted only if the summary judgment record establishes a right thereto as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970); Prestegord v. Glenn, 441 S.W.2d 185 (Tex.1969); Rule 166-A(c), T.R.C.P. The ultimate question is whether the summary judgment proof establishes that there is no genuine issue as to any material fact. Rule 166-A(c), supra. Where, as here, the motion for summary judgment is supported by affidavits or other extrinsic evidence sufficient on its face to establish facts which, if proven at the trial, would enable the mov-ant to an instructed verdict, the opponent must show opposing evidentiary evidence which will raise an issue as to a material fact. 4 McDonald, Texas Civil Practice, sec. 17.26.8 (IV) p. 156 (1971 ed.). As we view the record, there is nothing in the summary judgment proof raising a disputed issue of material fact. It follows therefore that the appellee was entitled to a summary judgment as a matter of law. The judgment of the trial court is affirmed.

      . “WOULD YOU BELIEVE
      DAVID H. BROWN-CANDIDATE FOR CONGRESS?
      “In Volume 512, Southwestern Reporter, 2nd Edition, page 317, (which reports the cases decided by the Appellate Courts), there is a decision by the Supreme Court of Texas styled ‘In the Matter of David H. Brown, District Judge,’ Cause No. B-^4229.
      “The following statements are contained in the opinion of the Supreme Court:
      ‘The Commission (State Judicial Qualifications Commission) found that Judge Brown was excessively absent from his court during a ten month period between February 1 and November 30, 1969; that he too readily found persons in contempt court and injected himself into the affairs of the county attorney and district attorney; that on one occasion during August 1970, he conducted a brief hearing concerning an accused felon without notification to the accused’s attorney; that during December 1970, he conducted a second hearing with the same accused felon and tried to persuade him to plead guilty, which hearing was also held without notice to the attorney; that during June 1970, he authorized the electronic interception of conversations between an accused felon and his attorney; and that while acting as independent executor of the Kern Estate, he failed to include in the inventory of the estate his own personal promissory note which he owed the estate.’
      “The Supreme Court of Texas did not remove Judge Brown from office. The Court held:
      ‘Judge Brown should be reprimanded, or to use the constitutional term, he should be and is censured.’
      “Justice Sam D. Johnson of the Supreme Court of Texas said in his dissenting opinion:
      ‘Judge Brown’s disregard for his obligation to the public, to the judiciary, and to his fellow judges was both wilful and persistent conduct inconsistent with the proper performance of his duties and as such fully justifies his removal from office.’
      ‘In the words of the constitution Judge Brown should be removed from office for wilful or persistent conduct which is clearly inconsistent with the proper performance of his said duties or casts public discredit upon the judiciary or administration of justice.’
      “I have purchased this ad because I believe that RAY ROBERTS has represented this Congressional District well and because I believe the people are entitled to know about the record of David H. Brown.
      MURPH WILSON”

      . . The truth of the statement, or statements, in such publication shall be a defense to such action . . .

      . “The publication of the following matters by any newspaper or periodical shall be deemed privileged and shall not be made the basis of any action for libel.
      “Sec. 4. A reasonable and fair comment or criticism of the official acts of public officials and of other matters of public concern published for general information.”

      . “A libel is a defamation expressed in printing or writing, or by signs and pictures, or draw-tags tending to blacken the memory of the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity, or virtue, or reputation of any one, or to publish the natural defects of any one and thereby expose such person to public hatred, ridicule, or financial injury.”


author: CORNELIUS, Justice.

text:
    H. C. ELKINS, Appellant, v. Lawrence U. WEST, Appellee.
    No. 8470.
    Court of Civil Appeals of Texas, Texarkana.
    July 26, 1977.

      Charles E. Thompson, Lovelace & Thompson, Inc., Atlanta, for appellant.
    Harry B. Friedman, Don B. Friedman, Harkness, Friedman & Kusin, Texarkana, for appellee.
   CORNELIUS, Justice.

The principal question in this appeal is whether the defendant, in this Texas suit brought to enforce a Louisiana judgment, was entitled to contest the jurisdiction of the Louisiana court after he had unsuccessfully appeared there specially to contest that jurisdiction in the original suit.

Appellee West recovered judgment for $22,500.00 damages, plus interest and attorney’s fees, against Appellant Elkins in the District Court of Caddo Parish, Louisiana. The suit grew out of an automobile collision in Louisiana which involved a vehicle belonging to appellant and driven by a person alleged to have been appellant’s agent. Process was served upon appellant by service upon the Louisiana Secretary of State pursuant to a Louisiana statute which provides that the use of the Louisiana highways by a non-resident motorist constitutes the appointment by said motorist of the Secretary of State as his agent to receive service of process in any suit growing out of such use. Appellant appeared specially in the Louisiana court to contest the jurisdiction. The basis of his contest was that the driver of the vehicle was not his agent but was an independent contractor. After hearing evidence on the plea to the jurisdiction, the trial judge concluded and announced from the bench that appellant had failed to carry his burden of showing that the driver was not his agent. Appellant did not appear further in the Louisiana court or contest the merits of the cause of action, and that court thereupon proceeded to render judgment against him for damages, costs and attorney’s fees. Appellee subsequently brought suit on the judgment in the District Court of Cass County, Texas, and then moved for summary judgment, attaching to his motion duly authenticated copies of the Louisiana court’s opinion and judgment. Appellant resisted the motion for summary judgment by filing an affidavit wherein he asserted that neither he personally nor any person acting as his agent had driven his vehicle in Louisiana on the occasion in question and that consequently the Louisiana court did not have jurisdiction. The trial court granted appellee’s motion for summary judgment. On appeal appellant contends that the question of jurisdiction was not fully heard and finally disposed of in the Louisiana court, that he was therefore entitled to contest the jurisdiction in the Texas proceeding, and that his affidavit raised a genuine issue of fact as to the Louisiana court’s jurisdiction. Ap-pellee contends that the Louisiana court determined the issue of jurisdiction against appellant and that further litigation of the issue is therefore precluded by the full faith and credit provisions of the United States Constitution.

For appellee to have been entitled to summary judgment, he had the burden to show, by competent summary judgment proof, that he was entitled to recover as a matter of law. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex. 1970). When he produced copies of the Louisiana judgment, authenticated as provided by 28 U.S.C.A. Sec. 1738, he showed that judgment to be entitled to full faith and credit in the Texas courts and entitled to recognition and enforcement, unless there was a showing of fraud or lack of jurisdiction on the part of the rendering court. Garman v. Reynolds, 284 S.W.2d 262 (Tex.Civ.App. Fort Worth 1955, writ ref’d); Hamilton v. Newbury, 412 S.W.2d 801 (Tex.Civ.App. Dallas 1967, writ ref’d n. r. e.); Roberts v. Hodges, 401 S.W.2d 332 (Tex.Civ.App. Amarillo 1966, writ ref’d n. r. e.); 34 Tex.Jur.2d, Judgments, Sec. 383, p. 404 (1962). The right of a court of one state to question whether a court of another state had jurisdiction when it entered a judgment sought to be accorded full faith and credit has long been recognized. Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945); Thompson v. Whitman, 18 Wall. 457, 21 L.Ed. 897 (1874). But the permissible scope of such an inquiry has been carefully restricted. When the enforcing court’s inquiry reveals that the question of the rendering court’s jurisdiction was raised by the defendant in that court and was there fully litigated and finally determined, the issue of jurisdiction may not be relitigated, and the judgment, even as to jurisdiction, is entitled to full faith and credit. Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963); Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85 (1939); Moody v. First Nat. Bank of Dona Ana County, 530 S.W.2d 879 (Tex.Civ.App. Houston-1st Dist. 1975, writ ref’d n. r. e.); Restatement of Judgments, Sec. 9; 50 C.J.S. Judgments § 893c(2), p. 505. The foregoing rule applies even though the defendant’s appearance in the rendering court is a special one limited to contesting the jurisdiction. Baldwin v. Iowa State Traveling Men’s Asso., 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244 (1931).

The copies of the Louisiana court’s opinion and judgment reveal that appellant appeared specially in that court and contested jurisdiction on the same ground which he attempted to urge in his affidavit in opposition to summary judgment in the Texas court. The matter was heard and determined adversely to his contention, thus bringing this case squarely within the rules heretofore discussed and foreclosing any re-litigation of the issue in the Texas court. Moody v. First Nat. Bank of Dona Ana County, supra.

Appellant recognizes the general rules heretofore noted but seeks to escape their application on two grounds. First, he contends that the copies of the Louisiana court’s opinion and judgment do not reveal that the issue of jurisdiction was fully litigated. We cannot agree. The Louisiana court’s “opinion” on the question of jurisdiction indicates that the question of lack of agency, the very ground appellant sought to urge in the Texas court, was fully litigated and considered in that court. It is to be presumed that appellant presented to that court all other defenses to the jurisdiction which were available to him; at least, he had the obligation to do so. In no event could he try the issue of jurisdiction piecemeal in two courts. Second, appellant contends there was no final determination by the Louisiana court of the jurisdictional question. He asserts that the opinion of the Louisiana court on the question was only a transcript of the trial judge’s comments from the bench and did not constitute an official order or judgment denying the jurisdictional plea. But regardless of the form of the pronouncement, the opinion was certified as the official act of the court, and we think it clear that the court found the issue of jurisdiction against appellant and overruled his special appearance; otherwise, the court would not have been authorized to thereafter entertain the suit on its merits and render judgment as it did on April 10, 1974.

Appellant attempts to distinguish this case from Moody v. First Nat. Bank of Dona Ana County, supra, because in that case the defendant’s failure to appeal the ruling on the jurisdictional contest constituted a significant basis for the decision. Appellant contends that in the case at bar there was no final judgment or order from which he could have appealed. It is true that he could not have immediately appealed from the mere denial of his plea to the jurisdiction, regardless of what form it took. In Texas an order overruling a special appearance to contest the jurisdiction is interlocutory and not appealable. Carpenter Body Works, Inc. v. McCulley, 389 S.W.2d 331 (Tex.Civ.App. Houston 1965), writ ref’d, cert. denied, 382 U.S. 979, 86 S.Ct. 550, 15 L.Ed.2d 469 (1966); Thode, In Personam Jurisdiction; Article 2031B, The Texas “Long Arm” Jurisdiction Statute; And The Appearance To Challenge Jurisdiction In Texas And Elsewhere, 42 Texas L.Rev. 279, 332 (1964). We assume that the law of Louisiana is the same. See Thode, In Personam Jurisdiction, supra, at page 291; Snyder v. Davison, 172 La. 274, 134 So. 89 (1931). But appellant could have appealed the default judgment, or he could have gone to trial on the merits after the overruling of his special appearance, and if the judgment went against him, he could have then appealed on both the merits and the jurisdictional question. Baldwin v. Iowa State Traveling Men's Asso., supra. Having litigated the question of jurisdiction and having chosen not to proceed further in the Louisiana court by trial on the merits and appeal, appellant has had his day in court and cannot relitigate the matter in the Texas court.

It is also urged that the Louisiana statute violates due process and is therefore unconstitutional because it contains no provision rendering it reasonably probable that a defendant, once process is served upon the Secretary of State, will be given notice thereof or will have a copy of the citation forwarded to him. See Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446 (1928). The answer is that such a contention may properly be raised only by one who has suffered injury due to lack of notice or opportunity for a hearing. American P. & L. Co. v. Securities and E. Com., 329 U.S. 90, 67 S.Ct. 133, 91 L.Ed. 103 (1946). Appellant obviously received some notice of the Louisiana suit because he voluntarily appeared there to contest the jurisdiction. Under those circumstances he is not entitled to urge that the statute is unconstitutional because it fails to provide reasonable assurances that a defendant will receive personal notice of the suit.

Appellant’s last point is that the court erred in awarding summary judgment for attorney’s fees. Appellee has conceded error in that regard and has filed a remittitur in the amount of the award. The judgment will therefore be modified to eliminate the award for attorney’s fees.

As modified the judgment of the trial court is affirmed.

      . La.Rev.Stat. 13:3474.

      . United States Constitution Art. IV, Sec. 1.


text:
    BRIDEWELL DEVELOPMENT CORPORATION et al., Appellants, v. AMERICAN GENERAL INVESTMENT CORPORATION, Appellee.
    No. 1671.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 27, 1977.

      Sander L. Esserman, Roger D. Marshall, Freytag & Marshall, Dallas, for appellants.
    Dan S. Boyd, John B. Holstead, Vinson & Elkins, Houston, for appellee.
   CIRE, Justice.

Defendants appeal the overruling of their pleas of privilege.

Appellee American General Investment Corp. brought suit in Harris County against appellant Bridewell Development Corp. as maker of a note and against appellants Billy Bridewell and Robert W. Bridewell as guarantors of the note.

Each of the appellants filed a plea of privilege to be sued in their respective counties of residence: Bridewell Development Corp. in Dallas County, Billy Bride-well in Smith County, and Robert W. Bride-well in Collin County. Appellee then filed a controverting affidavit stating that exceptions to exclusive venue in the appellants’ counties of residence existed under subdivisions 5(a) and 29a of the venue statute, Tex.Rev.Civ.Stat. Ann. art. 1995 (1976). Subdivision 5(a) provides:

(a) Subject to the provisions of Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.

The note read:

Houston, Texas, December 14, 1972 At the maturity hereof, after date, without grace, for value received BRIDE-WELL DEVELOPMENT CORPORATION, a Texas Corporation, does promise to pay to the order of the American General Investment Corporation at its office in the City of Houston, Texas .

At the hearing on the pleas of privilege, appellants contended that Houston, Texas has been in three counties since 1965 — Harris, Fort Bend, and Montgomery — and that a recitation in the note that it was payable at American General Investment Corp.’s offices in Houston, Texas, did not specify a county in which the contract was to be performed. L. 0. Benson, senior vice-president and secretary of American General Investment Corp., testified that the offices of the corporation were at 2727 Allen Parkway in Houston, Harris County, Texas. This testimony was uncontroverted. After hearing argument of counsel, the district court denied appellants’ pleas of privilege.

Appellants attack the court’s ruling by three points of error. The first point asserts venue in Harris County could not be maintained as to Bridewell Development Corp. under article 1995, subdivision 5(a). We disagree. The contract names a definite place for performance, i. e., the offices of American General Investment Corp. in Houston, Texas. If a written instrument states a definite place where the contract is to be performed, such definite place may be identified as being located within a particular county by extraneous proof. Burtis v. Butler Bros., 148 Tex. 543, 549, 226 S.W.2d 825, 829 (1950); Vahlsing, Inc. v. Esco, Ltd., 496 S.W.2d 652, 654 (Tex.Civ.App.-Corpus Christi 1973, writ dism’d). The undisputed evidence established these offices to be in Harris County.

In their second point of error, appellants contend venue cannot be maintained in Harris County as to Billy Bridewell and Robert W. Bridewell, as guarantors on the note, under subdivision 5(a). Each of the contracts of guaranty state that

. as an inducement to AMERICAN GENERAL INVESTMENT CORPORATION, a Texas corporation with offices in Houston, Harris County, Texas . . . Guarantor, absolutely and unconditionally, guarantees the prompt, complete and full payment at maturity of all sums payable and to be payable on said Note .

An absolute and unconditional guaranty includes all of the note’s terms and, if the note states it is payable at a definite place, then the guaranty must be held to provide for performance at a definite place. Hopkins v. First Nat’l Bank, 546 S.W.2d 84 (Tex.Civ.App.-Corpus Christi 1976), writ ref’d n. r. e. per curiam, 551 S.W.2d 343, 345 (Tex.Sup.1977). The point is overruled.

In view of our holding on point of error number 2 we need not decide the third point, asserting that venue as to appellants Billy Bridewell and Robert W. Bridewell could not be maintained in Harris County under subdivision 29a.

Affirmed.


text:
    George S. BARHAM, III, et al., Appellants, v. Danny J. POWELL et al., Appellees.
    No. 1044.
    Court of Civil Appeals of Texas, Tyler.
    July 28, 1977.
    Rehearing Denied Aug. 25, 1977.

      John M. Cely, Maroney & Cely, Lufkin, for appellants.
    John 0. Sutton, Stripling & Sutton, Nac-ogdoches, for appellees.
   MOORE, Justice.

This is an appeal from a summary judgment. Plaintiffs, George S. Barham, III, Worth Barham and Byron McGough, agreed to sell approximately 20 acres of land to defendants, Danny J. Powell and Roy W. Rigby, for the sum of $52,000.00. Pursuant to such agreement the parties entered into an earnest money contract and defendants paid $3,000.00 as earnest money to the plaintiffs. Thereafter, the plaintiffs brought this suit for specific performance alleging that they had performed all of their obligations under the contract and had offered and tendered full performance thereof, but defendants had wrongfully refused to accept the same. Defendants answered with a general denial and by way of an affirmative defense alleged that the property description contained in the earnest money contract was wholly insufficient to comply with the Statute of Frauds found in Tex. Bus. & Comm. Code sec. 26.01. In the alternative, defendants alleged that the plaintiffs had falsely represented that the property in question had over 300 feet of highway frontage whereas, in fact, there was far less highway frontage. By means of a counterclaim, defendants sought a return of the $3,000.00 earnest money they had paid to plaintiffs. Defendants then filed a motion for summary judgment under Rule 166-A, Tex.R.Civ.P. After a hearing the trial court entered a summary judgment in favor of the defendants. The summary judgment recites that the court found that the property description in the earnest money contract was not sufficient to comply with the Statute of Frauds. The judgment ordered the plaintiffs to return to the defendants the $3,000.00 earnest money as prayed for in their counterclaim. From such disposition, the plaintiffs perfected this appeal.

We affirm.

Plaintiffs attack the judgment by three points of error contending that the trial court erred in rendering summary judgment for the defendants because the summary judgment proof was sufficient to create a genuine issue of material fact concerning whether the property description contained in the earnest money contract was sufficient to describe the property so as to satisfy the requirements of the Statute of Frauds. The crux of plaintiffs’ argument is that a material issue of fact was created by the conflict between the affidavit testimony of Nelson Samson, a Registered Public Surveyor, in which he stated that it would be impossible to locate the land on the ground from the description contained in the earnest money contract and the affidavit testimony of Darrell D. Shine, a Registered Public Surveyor, who stated that the description contained in the earnest money contract was sufficient to locate the land on the ground and that he could locate and identify it.

The sole issue to be determined is whether the property description contained in the earnest money contract falls within the Statute of Frauds. The metes and bounds description reads as follows:

“All that certain tract of land situated in the City of Nacogdoches, Nacogdoches County, Texas, a part of the John Rowen Survey A-482, Block 66, City of Nacogdo-ches described as follows:
“Bounded on the North by Highway 21;
“Bounded on the West by a line running in a generally Southwesterly direction (not a straight line) to a point in the T P & L R.O.W. line, which line runs in an East-West direction;
“Bounded on the South by said T P & L R.O.W. line running in an East-West direction;
“Bounded on the East by a line running in a Northeasterly direction (not a straight line) to the point of beginning and containing 20 acres.
“SAVE and EXCEPT a tract reserved by Sellers hereto, bounded on the West by Loop 224 with a frontage of approximately 1100' and a depth of parallel lines of approximate equal distance running perpendicular to Loop 224 which will comprise all acreage left over after survey of the above described 20 acres.
“Also being a part of a tract of land described in the Deed of Trust Records, Nacogdoches County, Texas, Volume 141, Page 144, Barham et al to Jerry Baker, Trustee, and also being a part of a tract of land described in a Deed, Monk to Pitts et ux dated May 19, 1972, recorded in Volume 375, Page 107, Deed Records, Nacogdoches County, Texas.”

The Statute of Frauds provides that a promise or agreement for the sale of real estate is not enforceable unless the promise or agreement or a memorandum of it, is in writing and signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him. Tex. Bus. & Comm. Code sec. 26.01, supra.

The rule to be applied in determining the sufficiency of a description of land in an action for specific performance is found in Morrow v. Shotwell, 477 S.W.2d 538, 539 (Tex. 1972), wherein the court said: “To be sufficient, the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the land to be conveyed may be identified with reasonable certainty.” (citing cases)

While the quoted description refers to other existing writings, it is apparent that those writings are of no value in identifying the land in question. Our problem is, therefore, to analyze the metes and bounds description to see if such description furnishes the means or data by which the land in question can be identified. We have concluded that it does not. The metes and bounds description contains no beginning point and no calls for course and distance. Moreover, there is no way that any of the four corners of the tract can be identified or established on the ground. The deficiency is further compounded by the fact that certain undescribed lands are excepted from the conveyance. Upon applying the foregoing rules of law to the description set forth in the contract, it is quite obvious that the metes and bounds description, standing alone, is not sufficient to meet the requirements of the Statute of Frauds and is, therefore, void.

In Morrow v. Shotwell, supra, at 540-41, the court made the following statement:

“. . . The correct rule relating to admissibility of parol evidence to aid descriptions in contracts for the conveyance of land is thus stated in Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152 (1945):
‘The certainty of the contract may be aided by parol only with certain limitations. The essential elements may never by supplied by parol. The details which merely explain or clarify the essential terms appearing in the instrument may ordinarily be shown by parol. But the parol must not constitute the framework or skeleton of the agreement. That must be contained in the writing. Thus, resort to extrinsic evidence, where proper at all, is not for the purpose of supplying the location or description of the land, but only for the purpose of identifying it with reasonable certainty from the data in the memorandum. O’Herin v. Neal, Tex.Civ.App., 56 S.W.2d 1105, writ refused.’ (Emphasis ours.)”

Where a contract for the sale of land, as here, is void for the want of description of the land intended to be conveyed, it cannot be aided by any averment or proof; nor will parol evidence of a surveyor be heard to identify the land intended to be conveyed. Walker v. Maynard, 31 S.W.2d 168, 170 (Tex.Civ.App. -Austin 1930, no writ).

The rule is too well settled to necessitate citation to authorities that it is the duty of the courts to construe an instrument of conveyance to determine if it sufficiently describes the land so as to comply with the requirements of the Statute of Frauds.

The disagreement between the surveyors as to whether the description in the contract to convey was sufficient to supply the location of the land on the ground, rather than creating an issue of fact, creates an issue of law for the courts. Since the instrument was void under the Statute of Frauds, parol testimony to the effect that the instrument was sufficient to supply the location or description of the land would be superfluous and inadmissible. It follows that the trial court properly disposed of the cause by the entry of a summary judgment.

The judgment of the trial court is affirmed.