author: SHANNON, Justice.

text:
    Jackie HIGHT, Appellant, v. JIM BASS FORD, INC., Appellee.
    No. 12569.
    Court of Civil Appeals of Texas, Austin.
    On Motion for Rehearing June 15, 1977.
    Rehearing Denied June 29, 1977.
    David Tim Edwards, Kever & Ratliff, San Angelo, for appellant.
    George S. Finley, Smith, Davis, Rose, Finley & Hofmann, San Angelo, for appel-lee.
   SHANNON, Justice.

The opinion of this Court filed on May 25, 1977, is withdrawn, and the following opinion replaces it.

Appellant, Jackie Hight, sued Jim Bass Ford, Inc., appellee, in the district court of Tom Green County, for alleged violations of the “Texas Consumer Credit Code,” Tex. Rev.Civ.Stat.Ann. art. 5069-7.02, and the “Federal Truth in Lending Act,” 15 U.S. C.A. § 1638(a)(10) (1974). Appellant sought $2,868.60 as a penalty for the alleged violations. After trial to the court, a take nothing judgment was entered. We will affirm that judgment.

In 1975, appellant bought a used GMC “Sierra” from appellee on retail installment contract. The purchase price was $4,295 and the finance charge made by appellee was $934.30.

In his trial petition, appellant pleaded, inter alia, that appellee violated the statutes in the following respects:

(1) the place of business of the seller was not set out in the contract;

(2) the part of the installment contract which constituted an acknowledgment by the buyer of a receipt of a copy of the contract was not set out in ten-point bold type;

(3) the contract was not signed by the seller; and

(4) the contract did not contain a description of the security interest to be retained by the seller in connection with the transaction.

Appellant did not contend that the finance charge was incorrect.

The proof was that the installment contract form was furnished appellee by Ford Motor Credit Company. Although of no importance in the resolution of the appeal, it is of interest that Ford Motor Credit Company represented to dealers that the installment contract form complied with the Federal Truth in Lending Act and Consumer Credit laws.

The buyer’s copy of the contract was not signed by Jim Bass Ford, Inc., although the name “Jim Bass Ford, Inc.” was typed in at the place in the contract designated “seller.” The original contract was signed by the Secretary-Treasurer of Jim Bass Ford, Inc., sometime after the trade had been made. The installment contract contained the post office box number of appellee instead of the street address.

Further proof was that appellee delivered the vehicle to appellant under the terms of the contract. At trial time appellant was making regular monthly payments pursuant to the contract. Appellant did not claim any actual damages resulted from the alleged violations of the statutes.

Before consideration of the points of error, it should be observed that the declared purpose of the Consumer Credit Code is to protect persons from unscrupulous operators, lenders, and vendors who perpetrate abusive and deceptive practices upon the public in the conduct of their businesses. In an effort to discourage those practices, Tex.Rev.Civ.Stat.Ann. art. 5069-8.01 imposes a stringent penalty for violations of the Consumer Credit Code. The penalty lays upon one, who fails to perform any duty specifically imposed on him by the Code, a forfeiture to the obligor of twice the amount of the finance charges provided in the contract and reasonable attorney’s fees. The statute provides further that there shall be no penalty for violation which results from “an accidental and bona fide error.”

Statutes imposing penalties are strictly construed, and one who seeks to recover a penalty must bring himself clearly within the terms of the statute. Tenneco Oil Company v. Padre Drilling Company, 453 S.W.2d 814 (Tex.1970). Any doubt as to the intention of the Legislature to punish the conduct of the party should be resolved in favor of the defendant. Gulf, Colorado & S. F. Ry. Co. v. Dwyer, 84 Tex. 194, 19 S.W. 470 (1892). Because the provisions of the Consumer Credit Code are penal in nature, those provisions, accordingly, are to be strictly construed.

Appellant maintains that the district court erred in entering the take nothing judgment because there is no evidence that appellee complied with the requirement of art. 5069-7.02(5) that the installment contract contain the “place of business of the seller.” On the first page of the contract under consideration there appears a box with the printed words “Seller-Name and Address.” Also, within the box the following typewritten information appears:

“Jim Bass Ford, Inc.
P. O. Box 3488
San Angelo, Texas 76901”

Appellant insists that “place of business” means appellee’s street address and not the post office box number. The purpose of the provision requiring the name and “place of business” of the seller is to enable the buyer to locate the seller. In that connection Jim Bass Ford, Inc., has been in business in San Angelo for about fourteen years. This Court knows judicially that San Angelo is not a city of great population or area. Moreover, appellant traded for the used vehicle at appellee’s place of business and, of course, was aware of appellee’s location. Under these circumstances, the inclusion of the post office address satisfies the purpose of the requirement of art. 5069-7.02(5) and is in substantial compliance with that statute.

By several points of error appellant claims that the court’s finding of facts do not support the judgment because the court found that the part of the contract, which is the acknowledgment by the buyer of delivery of a copy of the contract, was printed in ten-point type, and not in ten-point bold type.

Texas Rev.Civ.Stat.Ann. art. 5069-7.02(4) provides that any acknowledgment by the buyer of delivery of a copy of the retail installment contract shall be in a size equal to at least ten-point bold type. The district court heard testimony from a printer and a professor of journalism with respect to the size of the type used in the acknowledgment section of the contract. The testimony was that it is so difficult to measure the difference between nine-point type and ten-point type that a microscope may have to be used. Appellant’s expert witness stated that the type was nine-point in size. Appel-lee’s expert, on the other hand, testified that the type was ten-point in size. The experts agreed that “bold” type is wider than “bold condensed” type, the part of the contract under consideration was printed in “bold condensed” type instead of “bold” type.

One purpose of the Consumer Credit Code is to discourage unscrupulous and sharp practices. The requirement regarding the size of the print is to facilitate ease in reading and to attract the attention of the party entering into the contract. Appellant was neither deceived nor harmed by the size of the print of the acknowledgment in the contract. The purpose of the statute would not be served by making an elephant from a flea. De minimis non curat lex.

It is true that the contract was not signed by the seller at the time of the trade between the seller and the buyer. No reason for the omission, other than clerical inadvertence, is suggested in the evidence. Appellant’s point of error is overruled upon the basis that appellee’s omission constituted “an accidental and bona fide error.” Tex.Rev.Civ.Stat.Ann. art. 5069-8.01. See Moore v. Sabine National Bank of Port Arthur, 527 S.W.2d 209, 213 (Tex.Civ.App. 1975, writ ref’d n. r. e.), Ratner v. Chemical Bank New York Trust Co., 329 P.Supp. 270 (S.D.N.Y.1971).

Finally, appellant urges that the judgment be reversed because appellee’s contract failed to comply with the requirement of the Truth in Lending legislation that the contract describe the type of security interest claimed by the seller in the consumer’s property. Appellee’s contract provides:

“Seller shall have a security interest under the Uniform Commercial Code in the Property (described above) and in the proceeds thereof to secure the payment in cash of the Total of Payments and all other amounts due or to become due hereunder.”

Appellant contends that this statement does not satisfy the requirements of 15 U.S.C. § 1638(a)(10) (1974). That section requires the seller to provide:

“A description of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates.”

Appellant argues that appellee’s description of the security interest retained is faulty because it does not describe the seller’s right of repossession under the security interest. In construing 15 U.S.C. § 1639(a)(8), which contains the identical language as § 1638(a)(10), the United States Court of Appeals for the Fifth Circuit held that neither the Act nor the regulations thereunder impose upon the creditor the obligation to set forth a list of its rights as a secured party. Grant v. Imperial Motors, 539 F.2d 506 (5 Cir. 1976). The security interest retained by the creditor in that case was as follows:

“Holder retains security title to and a security interest in property until total of payments and any other indebtedness now or hereafter due or owing by Buyer to Holder, however and whenever incurred, is paid.”

In Grant the Court held the above description of the security interest to satisfy the requirements of § 1639(a)(8).

Appellant asserts that McDonald v. Savoy, 501 S.W.2d 400 (Tex.Civ.App.1973, no writ), requires a reversal of the district court’s judgment. The security interest retained in Savoy was stated as follows: “Seller is reserving a security interest in the above vehicle to secure this and any other debt Buyer may owe Seller or any subsequent Holder.” The San Antonio Court of Civil Appeals was of the opinion that the “. . . mere recital that ‘a security interest’ is being retained falls short of satisfying the requirement that the security interest be described.” The description of the security interest in the instrument in Savoy did not include the language, as does the instrument in the case at bar, “. . . a security interest under the Uniform Commercial Code . . .” The inclusion of the Term “under the Uniform Commercial Code” delimits somewhat the kind of security interest retained by appellee. In any event, as we understand Grant v. Imperial Motors, supra, neither the Act nor the regulations impose upon the seller the obligation to set forth a list of its rights as a secured party.

The judgment is affirmed.

Affirmed on Motion for Rehearing.


source: Caselaw Access Project

author: AKIN, Justice. GUITTARD, Chief Justice.

license: Public Domain

text:
    Thresia JOHNSON, Appellant, v. HIGHLAND HILLS DRIVE APARTMENTS, Appellee.
    No. 19040.
    Court of Civil Appeals of Texas, Dallas.
    March 24, 1977.
    Rehearing Denied April 21, 1977.

      Michael M. Daniel, Dallas Legal Services Foundation, Inc., Dallas, for appellant.
    Steven Wm. Buholz, Dallas, for appellee.
   AKIN, Justice.

This is an appeal by Thresia Johnson, plaintiff, from a summary judgment granted in favor of Highland Hills Drive Apartments, defendant, by the county court at law. Plaintiff sued for damages allegedly resulting from defendant’s wrongful termination of her lease and its breach of duty to provide facilities for mail delivery. Defendant’s motion for summary judgment was supported by a copy of the written lease between plaintiff and defendant and by a judgment rendered by a county court at law in its favor and against plaintiff in a forcible entry and detainer action. Plaintiff contends that the summary judgment was improper because the forcible entry and detainer judgment cannot constitute an estoppel by judgment of this suit for damages and because defendant failed to show, as a matter of law, that it had no duty to provide mail delivery facilities. Although we hold that the defendant had no implied duty to provide mail delivery facilities, we reverse and remand for trial with respect to the alleged wrongful eviction because we hold that this action is not barred by the adverse forcible entry and detainer judgment.

Defendant asserts that the judgment of possession in the forcible detainer action acts as an estoppel by judgment on the issue of whether the plaintiff was wrongfully evicted from the premises. We cannot agree. Texas Revised Civil Statutes Annotated art. 3994 (Vernon 1966) provides:

The proceedings under a forcible entry, or forcible detainer, shall not bar an action for trespass, damages, waste, rent or mesne profits, [emphasis added]

As we read this language, the legislative intent is clear that an action for damages is not barred by a judgment of possession in a forcible detainer action. Although we have found no case directly in point, the supreme court in House v. Reavis, 89 Tex. 626, 35 S.W. 1063, 1066-67 (1896) held, in construing this statute, that the word “trespass” included trespass to try title and, therefore, a judgment of possession was not a bar to a trespass to try title suit. The court reasoned that if the term “trespass” had been intended to cover only trespass to land, then the mention of actions for damages would have been unnecessary because an action for damages would be within the ambit of “for trespass,” by which damages to the land could be recovered. We conclude, likewise, that the language of the statute with respect to “damages” would be meaningless if we were to hold that an action for damages is barred. Accordingly, we hold that article 3994 prevents a judgment of possession in a forcible entry and detainer action from barring a subsequent action for damages for wrongful eviction.

In support of defendant’s contention that the judgment in the detainer action bars this suit for wrongful eviction, he cites Rankin v. Hooks, 81 S.W. 1005 (Tex.Civ.App.—Dallas 1904, no writ) and Glau-Moya Parap sychology Training Institute, Inc. v. Royal Life Ins. Co., 507 S.W.2d 824, 826 (Tex.Civ.App.—San Antonio 1974, no writ). In Rankin, this court held that a judgment of possession rendered by a justice court was res judicata with respect to a subsequent suit in the district court as to the validity of a lease. In Glau-Moya, the San Antonio Court of Civil Appeals likewise held that a county court’s judgment of possession was res judicata with respect to a suit to determine the validity of an addendum to a lease. Both courts reasoned that the determination of possession necessarily required the court in the forcible detainer action to determine the validity of the lease and, consequently, held that this precluded a subsequent suit with respect to the lease’s validity. We do not regard these cases as controlling here because neither construed nor referred to article 3994. Had this statute been called to these courts’ attention, they might have arrived at an opposite conclusion. To the extent that they may have considered article 3994 as inapplicable, these decisions are wrong, and we expressly overrule the decision of this court in Rankin.

In addition to these cases cited by appellee, we note that Young Women’s Christian Ass’n v. Hair, 165 S.W.2d 238 (Tex.Civ.App—Austin 1942, writ ref’d w.o.m.) and Slay v. Fugitt, 302 S.W.2d 698 (Tex.Civ.App.—Dallas 1957, writ ref’d n.r.e.), likewise erroneously held that a final judgment of possession in a forcible detainer action was res judicata with respect to crucial issues pertaining to the opposing parties’ rights under a lease because in the detainer action the court necessarily had to pass on those issues to determine the right to possession. In Hair, the court mentions, but does not construe, article 3994 and relies upon Rankin v. Hooks, supra, for its conclusion. In Slay, this court also mentions article 3994, but does not construe it; rather, this court stated that article 3994 means “that the action of forcible entry and detainer and the action of trespass to try title or other posses-sory action in the district court provide cumulative and not exclusive remedies and may be resorted to and prosecuted concurrently.” Slay, at 701. In reaching its conclusion, the Slay court cites Hair and Rankin as authority. The ultimate holding in both Hair and Slay, which were passed on by the supreme court writ ref’d w.o.m. and writ ref’d n.r.e., respectively, may have been correct insofar as both dissolved injunctions issued by a district court halting the detainer action in Hair and restraining the issuance of a writ of restitution in Slay because an adequate remedy at law was available in the district court. We regard the holdings of res judicata with respect to the issues passed upon by the court in the detainer action as erroneous dicta. We conclude, therefore, that when properly construed, article 3994 prevents any issue in the detainer action, other than immediate possession, from acting as an estoppel by judgment in a subsequent action in the district court with respect to a determination of the adverse parties’ rights under a lease even though this determination may very well result in a different ultimate disposition of possession of the premises. This conclusion is consistent with numerous decisions holding that the forcible entry and detainer action is cumulative of other remedies.

Our holding, here, is consistent with the theory that a forcible detainer action is for the primary purpose of resolving who is entitled to immediate possession of the premises. Haginas v. Malbis Memorial Foundation, 163 Tex. 274, 354 S.W.2d 368, 371 (1962). It is cumulative of other remedies, rather than exclusive. Holcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307, 309 (1935). Thus, a judgment of possession is not intended to be a final determination of whether the eviction is wrongful or not; rather, it is a final determination only with respect to the right of immediate possession, which determination by a county court at law is not appealable. Tex.Rev.Civ.Stat. Ann. art. 3992 (Vernon 1966); House v. Reavis, 35 S.W. at 1066. Consequently, the judgment of possession in a detainer suit does not determine the ultimate rights of the parties with respect to any other issue in controversy regardless of whether this other issue results in a change of possession of the premises.

Plaintiff also contends that defendant’s summary-judgment evidence, which consisted solely of the lease agreement which did not expressly require the landlord to furnish mail facilities, but did contain a provision that the tenant had inspected the premises and found them suitable, was insufficient because such a duty may be implied by law. We cannot agree. The general rule is that there is no implied warranty on the part of the landlord that the leased premises are fit for their intended purpose. Lynch v. Ortlieb, 70 Tex. 727, 8 S.W. 515, 516 (1888); see Cameron v. Calhoun-Smith Distributing Co., 442 S.W.2d 815, 816 (Tex.Civ.App.—Austin 1969, no writ); see also Yarbrough v. Booher, 141 Tex. 420, 174 S.W.2d 47, 48 (1943). But cf. Humber v. Morton, 426 S.W.2d 554 (Tex.1968) (holding the doctrine of caveat emptor inapplicable to the sale of a new house).

Even if this state adopted the doctrine of implied warranty of habitability with respect to residential leases, as urged in the concurring opinion, we are of the opinion that it would not extend to mail facilities.

Affirmed in part and reversed and remanded in part.

GUITTARD, Chief Justice.

Although I agree that the summary judgment must be reversed insofar as it denies recovery for damages for wrongful termination of the lease, I am reluctant to concur in the holding that summary judgment was proper with respect to the claim for damages for failure to provide facilities for delivery of mail. My reservation concerns the holding that there is no implied warranty on the part of a lessor that premises leased for residential purposes are suitable for their intended use.

Of the three cases cited to support this holding, two concerned commercial leases, which were interpreted as excluding by their terms any warranty of suitability. Lynch v. Ortlieb, 70 Tex. 727, 8 S.W. 515 (1888); Cameron v. Calhoun-Smith Distributing Co., 442 S.W.2d 815 (Tex.Civ.App.—Austin 1969, no writ). The third is Yarbrough v. Booher, 141 Tex. 420, 174 S.W.2d 47, 48 (1943), in which the lessor of an apartment was held not liable to the lessee for an injury resulting from failure to keep the premises in repair. Yarbrough appears to apply the caveat emptor rule to a lease of residential property. This rule has recently lost its vigor with the strong trend of decisions and legislation toward protection of consumers. It has collapsed and been pronounced dead in the case of sales of new houses. Humber v. Morton, 426 S.W.2d 554 (Tex.1968). In Humber, Justice Norvell observed that an ordinary purchaser is not in a position to discover defects in construction and rejected the caveat emptor rule as “an anachronism patently out of harmony with modern home-buying practices.” Id. at 562.

Caveat emptor seems to me equally moribund as applied to residential leases. An ordinary lessee is rarely, if ever, expected to spend his own funds to keep the premises fit for occupancy. In other jurisdictions the trend is to reject caveat emptor in this context and imply a warranty of habitability. Among the decisions so holding are the following: Javins v. First National Realty Co., 138 U.S.App.D.C. 369, 428 F.2d 1071, cert. den. 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1971); 40 A.L.R.3d 646; Lemle v. Breeden, 51 Haw. 426, 462 P.2d 470, 40 A.L.R.3d 637 (1969); Boston Housing Authority v. Hemingway, 363 Mass. 184, 293 N.E.2d 831 (1973); King v. Moorehead, 495 S.W.2d 65 (Mo.Ct.App.1973); Marini v. Ireland, 56 N.J. 130, 265 A.2d 526, 40 A.L.R.3d 1356 (1970); Academy Spires, Inc. v. Brown, 111 N.J.Super. 477, 268 A.2d 556 (1970). A full discussion of the matter may be found in Line, Implied Warranties of Habitability and Fitness for Intended Use in Urban Residential Leases, 26 Baylor L.Rev. 161 (1974), and Comment, The Implied Warranty of Habitability in Landlord-Tenant Relationships: The Necessity of Application in Texas, 5 St. Mary’s L.J. 64 (1973). Since the caveat emptor rule as applied in Yarbrough is directly contrary to this trend, as well as out of harmony with the rationale of Humber v. Morton, I am not sure that the present supreme court would follow it. Nevertheless, since it is a decision of the supreme court, I agree that this court should not presume to overrule it. On this basis, reluctantly, I concur.

      . Although both courts used the term res judi-cata, we doubt that they relied upon this doctrine; instead, both cases appear to rely upon estoppel by judgment. For a discussion of res judicata, see Oak Lawn Preservation Society v. Board of Managers of Dallas County Hospital District, 539 S.W.2d 167, 169 (Tex.Civ.App.—Dallas 1976, no writ).


author: SPURLOCK, Justice.

text:
    YOUNG MEN’S CHRISTIAN ASSOCIATION OF METROPOLITAN FORT WORTH et al., Appellants, v. COMMERCIAL STANDARD INSURANCE COMPANY, Appellee.
    No. 17776.
    Court of Civil Appeals of Texas, Fort Worth.
    March 25, 1977.
    Rehearing Denied May 19, 1977.
    Second Rehearing Denied June 23, 1977.

      Brown, Crowley, Simon & Peebles, Fort Worth, Byrd, Davis, Eisenberg & Clark, Austin, Scarborough, Black, Tarpley & Scarborough and J. R. Black, Abilene, for appellants.
    McBryde, Bogle & Green and John H. McBryde, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

Defendant insurance carrier’s motion for summary judgment was granted in a case brought by the injured parties and the insured against the insurance carrier following a judgment obtained by the injured parties against the insured. The summary judgment was granted on the grounds that the injured parties and the insured had entered into a covenant in which the injured parties agreed not to levy execution on the assets of YMCA, the judgment debt- or; and the insured, YMCA, had breached a non-waiver agreement with the insurer, thereby denying the insurer its right to defend the insured. The injured parties and insured appeal.

We reverse and remand.

The event giving rise to this litigation is an accident occurring on July 20, 1967, at a summer camp called Camp Carter, which was then operated by the Young Men’s Christian Association of Fort Worth and Tarrant County. The name has since been changed to Young Men’s Christian Association of Metropolitan Fort Worth, and will hereafter be referred to as YMCA. Johnny Howie, then nine years of age, was injured * by another young camper. He was fishing .■from a crowded dock on a lake at Camp Carter when the other camper caused either a fish hook or a sinker to strike his eye. As * a result, Johnny eventually lost his vision in that eye. YMCA learned of the accident the day it occurred, and notified George Medina, the insurance agent who had issued a general liability insurance policy insuring YMCA with Commercial Standard Insurance Company. Medina had also issued YMCA a hospitalization policy with another company.

The agent received the notice in writing, containing ad the information required by both policies, the following day. The notice was apparently sent on the form provided for notifying the agent in order for the child to obtain medical treatment. About August 26, 1968, the injured boy’s father inquired of YMCA whether it had liability insurance. YMCA that day notified the same agent, George Medina, of this inquiry, again giving ad the facts in writing. It was received by the agent August 27, 1968.

NON-WAIVER AGREEMENT

The following day, August 28, 1968, YMCA and Commercial Standard entered into a standard “Non-Waiver Agreement,” in which the insurer acknowledged it had issued its policy to the insured. The parties also agreed that any action taken by the insurer in investigating the above-described accident

“. . . shall not in any way change, waive, invalidate or forfeit any of the terms, conditions and requirements of said policy or any of the rights of either of the parties hereto under said policy; and in the event any suit has been or shall be filed against the Insured, growing out of said accident, should the Company elect to defend said suit or participate therein, said defense or participation therein by it shall not be construed to change, waive, invalidate or forfeit any of the terms and conditions of said policy or any of its rights thereunder. No act of the Company, done by way of said investigation or defense, shall be construed as an admission of liability under said policy.
“It is the intention of this agreement to permit a full investigation of said accident and a defense of any suit brought on account of said accident, should the Company elect to defend, without in any way affecting, impairing or waiving any of the rights of either party hereto, except that the Insured waives the right to insist that such investigation or defense by the Company shall constitute an admission of liability under said policy.” (Emphasis added.)

The summary judgment evidence shows without dispute that neither YMCA nor its personal attorney was ever informed by Commercial Standard that the carrier would be claiming a late-notice defense. The insured was not informed until April 14, 1972 (almost four years later) that the attorneys selected by Commercial Standard had a possible conflict of interest in representing both Commercial Standard and YMCA.

The Dallas firm of Strasburger, Price, Kelton, Martin & Unis was retained by Commercial Standard to defend the claim. It notified YMCA by letter dated June 26, 1969, that it was defending the case under a reservation of rights, without ever explaining to the YMCA what was meant by this term or that there was a question of late notice or conflict of interest. This letter further stated: “Of course, it is understood that none of your rights or contentions under your policy is waived.” (Emphasis added.)

The insurance policy provided that the insurer would not “use as a defense the fact that the Y.M.C.A. of Ft. Worth is non-profit and Charitable Membership organization except in such instances as the Y.M.C.A. Board of Directors gives its permission to do so”, and except when the verdict or judgment is in excess of the limits of liability stated in the policy (in this instance, $100,000.00).

Although the record does not disclose whether the Board of Directors of the YMCA ever gave its insurer permission to claim charitable immunity, YMCA filed a motion for summary judgment based solely upon this defense. We take judicial knowledge of the records of this court in Howle v. Camp Amon Carter, 462 S.W.2d 624 (Tex.Civ.App.—Fort Worth, 1971 rev’d). YMCA attached a certified copy of its charter to its motion, showing that it was a non-profit organization supported by paying members, fees collected, and donations. The summary judgment was granted, affirmed by this court, and then reversed by the supreme court. Howle v. Camp Amon Carter, 470 S.W.2d 629 (Tex.1971).

THE ORIGINAL SUIT

In the personal injury suit, it was alleged that in 1967 Johnny Howie was struck in the eye by a sinker or hook attached to a fishing line cast by a fellow camper, Gary Post. Johnny lost the sight of one eye. Suit was brought by Johnny and his father against the other camper and YMCA. They alleged that the damages sustained were caused by, among other things, the negligence of employees of YMCA in failing to supervise Gary properly and prevent his casting in the area where the accident occurred. The supreme court held that YMCA was not relieved from liability under the doctrine of charitable immunity and that a charitable enterprise is subject to vicarious liability under the rule of respon-deat superior applicable to business organizations operated for profit. This case was remanded.

(a)Notice of Late-Notice Defense

After remand, but before the case was retried, by letter of April 14, 1972, the Strasburger firm notified George Crowley, the personal attorney for YMCA, that the plaintiffs had amended their petition and were now suing for at least $220,000.00, an amount in excess of the limits of the YMCA’s policy. In that letter the insurance company’s attorney for the first time notified the personal attorney for YMCA that they were defending the suit under the non-waiver agreement because of the insurer’s belief that it had not been furnished notice of the incident in question as promptly as required by the terms of the policy.

The letter confirmed a telephone conversation between these attorneys two days earlier, in which Crowley had indicated that under these circumstances he desired to become an attorney of record for YMCA.

The injured parties and YMCA then agreed to enter into a “Covenant Not to Execute.” By this covenant YMCA intended to protect itself from the possibility of a judgment in excess of the policy limits and from having execution levied upon its property in the event Commercial Standard prevailed in its late-notice defense that there was no coverage. The injured parties agreed to the covenant because they thought the insurance carrier would defend and thus, if it had not already done so, would waive the late-notice policy defense; the case would probably be settled; and they had no desire to levy execution upon the property of the YMCA.

Crowley then notified the Strasburger firm by letter of June 6, 1972, that its representation of YMCA on retainer by the insurance carrier was no longer acceptable to YMCA under the non-waiver agreement. Demand was made that the insurance carrier accept full coverage and responsibility. The letter also advised that YMCA would construe any further representation of it by that firm as a waiver of any rights to deny coverage which may then have been owned by the insurance carrier. The letter from Crowley to the Strasburger firm emphasized that YMCA would continue to cooperate with the insurance company, and its attorneys in the defense of the case and do everything in their power to assist them in defeating the claims asserted by the injured parties. The Strasburger firm then withdrew as counsel of record for YMCA, and Commercial Standard refused to defend.

(b)Temporary Guardianship Authorizing Covenant not to Execute

An application was made for the appointment of a temporary guardian of the minor plaintiff, describing what had transpired and the reservation of rights problem. The proposed guardian’s authority was to be for the purpose of executing the covenant not to execute which was attached to the application. The Honorable Robert Burnett, Probate Judge, granted the application, appointed Laurance Priddy, an attorney, as temporary guardian, authorizing him to execute the covenant not to execute.

(c)Covenant not to Execute

The covenant was executed in June 1972 by Johnny’s father, the temporary guardian, and the YMCA. In summary form, it provides that the Howies “. . . agree and covenant that they shall not . levy or issue execution, garnishment or any other process, including abstract of judgment against any assets, or property, of any kind or description, of covenantee [YMCA] herein, with the sole exception of the liability insurance policy which covenantee Young Men’s Christian Association of Metropolitan Fort Forth as insured thereunder may have with Commercial Standard Insurance Company . . .” It then describes the policy.

It further provides that the Howies will indemnify YMCA to the extent of any amount of judgment which might be rendered in favor of the Howies against YMCA in excess of what is actually collected from the insurance carrier. It also provides that the covenant will not be considered as an admission of liability. It was executed without prejudice to deny liability in any form. YMCA further covenanted that it would cooperate with its insurance carrier in the defense of the suit and that “from this date forward it will fulfill each and every contractual provision contained in said insurance policy and be guilty of no act or omission giving a right to said insurance company or receiver to deny liability or coverage by reason of said insurance policy by its actions.”

The Howies reserved the right to proceed against the insurance carrier for recovery of full satisfaction of their claim against it to the extent of the insurance carrier’s liability for the incident and for failure to properly defend YMCA.

The cause proceeded to trial without a jury; YMCA was represented by its personal counsel. Judgment was rendered on January 30,1973, in favor of the Howies by the Honorable James Wright, Judge of the 141st District Court. The judgment recites that the evidence was fully developed and it orders that Johnnie [sic] Howie, recover judgment in the sum of $28,000 and John W. Howie, his father, recover judgment in the sum of $17,000.

THE SUIT ON THE POLICY AGAINST THE INSURER

By the time the suit now on appeal, i. e., the suit to require Commercial Standard to pay the above judgment, had been filed, John W. Howie had died and Johnny Howie had reached his majority. Johnny filed in his own behalf, and was joined by the executrix of his father’s estate, and by YMCA, as plaintiffs against Commercial Standard.

The insurance carrier filed an amended motion for summary judgment, limiting itself to the following three grounds:

(1) The conduct of the YMCA deprived Commercial Standard of its contractual right of defense.

(2) YMCA had no legal obligation to make payments to Johnny Howie or his father’s estate, with the consequence that Commercial Standard had no liability due to the fact that its insuring obligation was to “. . . pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages

(3) Because of this covenant, YMCA has no obligation to make payment to Johnny Howie or his father’s estate, with the consequence that this suit against Commercial Standard is unauthorized, by virtue of the policy condition that no action shall lie against the company until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.

This court may not consider any other grounds for sustaining the summary judgment. City of Pasadena v. State ex rel. City of Houston, 442 S.W.2d 325 (Tex.1969).

It is well settled that the burden of proof is on the movant in a summary judgment proceeding. A summary judgment should not be granted unless there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. All conflicts in the evidence are disregarded, and the evidence which stands to support the position of the party opposing the motion is accepted as true. Farley v. Prudential Insurance Company, 480 S.W.2d 176 (Tex.1972).

Pertinent Policy Provisions

The policy here involved is a “General-Automobile Liability Policy,” containing “comprehensive general liability insurance” coverage. The pertinent provisions follow:

Legal Obligation to Pay: “The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of . bodily injury ... to which this insurance applies . . .

Supplemental Payments: The insurer agrees to pay the insured for the cost of a bail bond, cost of first aid to others, and other expenses incurred by the insured.

Right and Duty to Defend: “. (T)he company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.”

No Action : “. . No action shall lie against the company unless, as a condition precedent thereto, there shall have been full compliance with all of the terms of this policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.”

Third Party Beneficiary: “Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. . . .” (Emphasis added.)

Notice: The insured must give written notice of the occurrence as soon as practicable containing certain specific information.

OPINION

YMCA contends it complied with the notice condition by immediately sending notice, in writing, to the agent who issued the policy. The notice included all known information concerning the occurrence. YMCA also contends that because it was an accident between two campers, they had no idea they were in any way involved until about a year later, when the child’s father inquired whether YMCA had liability insurance. Further, the agent had instructed YMCA not to report accidents of this type. Upon the father’s inquiry, YMCA immediately again notified the same agent. They assert that under these facts, Commercial Standard was properly notified, and had the duty to defend the suit.

If the notice provision was complied with, then YMCA had the right to demand and receive an unconditional defense, unburdened by a reservation of rights or non-waiver agreement. American Fidelity & Casualty Co. v. Williams, 34 S.W.2d 396 (Tex.Civ.App.—Amarillo, 1930 writ ref’d); Pacific Indemnity Co. v. Acel Delivery Service, Inc., 485 F.2d 1169, 1173 (5th Cir. 1973); 7A J.. Appleman, Insurance Law and Practice § 4694, n. 20.10, at 544 (1962).

YMCA is not contending that the non-waiver agreement was not binding before YMCA, though Crowley, its personal attorney, notified Commercial Standard on June 6, 1972, that it was no longer acceptable to YMCA that Commercial Standard defend under the reservation of rights agreement, as noted above. We hold the duty to defend, from that date forward, was not waived.

At the time the letter was written, counsel retained by Commercial Standard had been representing YMCA as its attorney of record for several years: through the trial court, the court of civil appeals and the supreme court, and again in the trial court after remand.. According to Commercial Standard’s brief, the firm had taken more than 14 depositions prior to the time the letter was written.

It is our opinion that YMCA had not breached the non-waiver agreement for the additional reasons set forth in Employers Casualty Company v. Tilley, 496 S.W.2d 552, 559 (Tex.1973). In that case, involving the construction of the “no-action” clause, a situation similar to this case was before the supreme court. That insured had also signed a standard non-waiver agreement. In that case as in the case before us, the insurance carrier had taken a non-waiver agreement and had thereafter purported to offer a defense to the insured without notifying it either of any conflict of interest or of the nature of the coverage question. This representation by the insurance carrier’s lawyer continued for the subsequent 18 months. That court held that, as a matter of law, the insurer was estopped from denying its responsibility to defend under its policy.

That court stated as follows:

“The American Bar Association National Conference of Lawyers and Liability Insurers made a careful study of this recurring problem and issued a list of ‘Guiding Principles’ for the guidance of liability insurers furnishing legal counsel for their insureds.2 Two of the principles which are relevant here read in part as follows:
“2 ‘National Conference of Lawyers and Insurers — Guiding Principles’ 20 Federation of Insurance Counsel Journal 95 et seq. (1970).
“TV. CONFLICTS OF INTEREST GENERALLY — DUTIES OF ATTORNEY. In any claim or in any suit where the attorney selected by the company to defend the claim or action becomes aware of facts or information which indicate to him a question of coverage in the matter being defended or any other conflict of interest between the company and the insured with respect to the defense of the matter, the attorney should promptly inform both the company and the insured, preferably in writing, of the nature and extent of the conflicting interest. .
‘“V. CONTINUATION BY ATTORNEY EVEN THOUGH THERE IS A CONFLICT OF INTERESTS. Where there is a question of coverage or other conflict of interest, the company and the attorney selected by the company to defend the claim or suit should not thereafter continue to defend the insured in the matter in question unless, after a full explanation of the coverage question, the insured acquiesces in the continuation of such defense . . . .’
“We approve the above quoted ‘guiding principles’ as conforming to the public policy of this State heretofore enunciated by this Court in our Canons of Ethics. They follow the same general principles earlier recognized by Texas courts. See Automobile Underwriters’ Insurance Co. v. Long, supra [63 S.W.2d 356 (Tex.Com.App.)] Travelers Ins. Co. v. Chicago Bridge & Iron Co., 442 S.W.2d 888 (Tex.Civ.App.1969, writ ref. n. r. e.); and Barreda Corp. v. Ballenger, 116 S.W.2d 442 (Tex.Civ.App.1938, writ dism’d).
“Conduct in violation of the above principles by the insurer through the attorney selected by it to represent the insured has been condemned by the highest courts of several other jurisdictions. In Perkoski v. Wilson, 371 Pa. 553, 92 A.2d 189 (1952); Tiedtke v. Fidelity & Casualty Company of New York, 222 So.2d 206 (Fla.1969); Bogle v. Conway, 199 Kan. 707, 433 P.2d 407 (1967); Crum v. Anchor Casualty Company, 264 Minn. 378, 119 N.W.2d 703 (1963); Merchants Indemnity Corp. v. Eggleston, 37 N.J. 114, 179 A.2d 505 (1962); and Van Dyke v. White, 55 Wash.2d 601, 349 P.2d 430 (1960), analogous conduct in violation of such principles was held to preclude or estop the insurer from denying coverage or liability. See also general criticisms and consequences of such conduct discussed in Meirthew v. Last, 376 Mich. 33, 135 N.W.2d 353 (1965); and Newcomb v. Meiss, 263 Minn. 315, 116 N.W.2d 593 (1962).”

The court then held that the above guiding principles are not diluted or nullified by a general non-waiver agreement; that the attorney selected by the insurance company to defend the insured must inform the insured of the specific conflict and afford him the opportunity to retain his own counsel; that to interpret the effect of the non-waiver agreement so as to permit such subsequent action and relieve the insurance carrier of the consequences thereof, would completely nullify those principles which arise from the attorney-client relationship; and that under the facts in that case, it would be untenable to permit the insurance carrier to disclaim liability for the defense of the insured in the suit filed against him as a result of the late-notice defense. See also Germer & Tebbs, Conduct of Defense Attorney and Insurance Company in Defending an Insured where a Coverage Question is Involved, 13 S.Tex.L.J. 223 (1972) (written the year before the Tilley ease was decided.)

It is our opinion and we hold that under the facts in this case Commercial Standard was estopped from denying coverage or liability and therefore owed YMCA a defense unencumbered by any reservation of rights.

Implicit within Commercial Standard’s argument is an assumption that the policy is one of indemnity rather than liability. An analysis of the distinction follows:

The insurer in a liability policy agrees to defend the insured and to protect it from liability. If it is unsuccessful and must settle, or a judgment is rendered against the insured, the insured is not required to pay the obligation before the insurer is required to pay. In the event a judgment is rendered against the insured, the insurer’s liability to pay attaches at that time. The obligation to pay continues until the judgment is satisfied.

An indemnity policy, on the other, hand, provides that no action shall lie against the insurer unless judgment against the insured has actually been paid. See Allstate Insurance Company v. Warren, 125 So.2d 886 (3rd Dist.Ct.App.—Florida, 1961); Seguros Tepeyac, S.A., Compania Mexicana v. Bostrom, 347 F.2d 168 (5th Cir. 1965); 32 Tex. Jur.2d Insurance § 4, at 28 (1962).

It is our opinion and we hold that the policy in the case at bar is one of liability, as distinguished from an indemnity contract.

We next consider the effect of the “covenant not to execute” on the liability of Commercial Standard under the terms of the “legal obligation to pay” and “no-action” clauses in the insuring agreement.

In First National Indemnity Company v. Mercado, 511 S.W.2d 354 (Tex.Civ.App.—Austin, 1974 no writ), an insurance carrier refused to defend the insured. In order to protect itself, the insured secured a covenant in which the claimants agreed not to execute except upon the policy. The court held that if the insured, under those circumstances, is left to defend himself, it is reasonable that he covenant against his own liability and hold the costs of his defense to a minimum. That court further pointed out the well-established rule that although an insurance company ordinarily may insist upon compliance with the condition found in the “no-aetion” clause, the company may not do so after it is given the opportunity to defend the suit or to agree to the settlement, and refuses to do either on the erroneous ground that it has no responsibility under the policy. The court relied upon Gulf Insurance Company v. Parker Products, Inc., 498 S.W.2d 676, 679 (Tex.1973); Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233, 237 (1956).

It is our opinion and we hold that the same reasoning and results would apply, had the case been decided under the “legal obligation to pay” provision of the insurance policy.

In Langdeau v. Pittman, 337 S.W.2d 343 (Tex.Civ.App.—Austin, 1960 writ ref’d n. r. e.), the court had before it an action against the receiver appointed for Highway Insurance Underwriters, for personal injuries sustained by a claimant as a result of a collision between a truck it had insured, and an automobile. In that case the claimants agreed they would satisfy their claim against the insurer only. They also agreed to indemnify and hold harmless the defendants to the extent of the amount of any judgment which might be rendered in favor of the plaintiffs against defendants in excess of what is actually collected from the insurance carrier. That court held the covenant not to execute did not release the insurance carrier of liability under the policy. The language of that covenant not to execute is very similar to the one here before us.

The general principle of law is stated in 7 Tex.Jur.2d Rev. Part 1, Automobile Insurance, § 43, at 308, “Judgment against insured as prerequisite.” (1975), “. after the injured party has secured a favorable judgment against the insured in a court of competent jurisdiction, the liability of the insurer to pay the judgment to the extent of its bond or policy attaches. Such judgment is the basis of the injured third party’s suit and permits the judgment creditor of the insured to institute an action in the nature of a third-party beneficiary action against the insurer to the extent of its policy limits.”

If this had been an indemnity policy rather than a liability policy there would have been no legal obligation to pay until the YMCA had paid the judgment. But this policy specifically gives the claimants, who are judgment creditors, the right of direct action against the insured’s liability carrier before judgment is satisfied.

As applied to the facts in this case, we agree with the language of the Arizona Supreme Court in Rager v. Superior Coach Sales & Service of Arizona, 110 Ariz. 188, 516 P.2d 324, 327 (1973), which states:

“A covenant not to execute is certainly not a satisfaction, nor is it the same as a release. Its legal effect is similar to a covenant not to sue, in that it does not extinguish the plaintiff’s cause of action and does not operate to release other joint tortfeasors. Pellett v. Sonotone Corp., 26 Cal.2d 705, 160 P.2d 783, 160 A.L.R. 863 (1945); Whittlesea v. Farmer, 86 Nev. 347, 469 P.2d 57 (1970).”

Appellants’ points of error are sustained.

Judgment is reversed and remanded.

ON MOTION FOR REHEARING

The probate court authorized the temporary guardian, Laurance L. Priddy, to execute the covenant not to execute. This covenant was signed by John W. Howie, the boy’s father; YMCA; and Laurance L. Priddy, as Temporary Guardian of the Estate of Johnny Howie, a minor. They covenanted “. . . that they shall not, nor shall anyone for them or on their behalf, levy or issue execution, garnishment or any other process, . . . Nowhere does Johnny Howie so covenant, nor does anyone covenant that Johnny Howie will not levy or issue execution, garnishment or any other process. The covenant attempted to bind only the temporary guardian. The petition on which this case was tried was filed November 20, 1975, two weeks after the child had reached his majority. Even if he were bound during his minority, which is not necessary for us to decide, he certainly is not bound now that he is an adult.

On March 15,1974, in the district court, a proceeding was had in the nature of a motion to compel the minor to answer interrogatories. In connection therewith, the guardian stipulated that “ ‘The only rights, if any, of . Johnny Howie, individually or through a representative, to enforce collection of or to receive payment from anyone of any part of the recovery and awards made in the January 30, 1973, judgment ... are whatever rights are stated in said “Covenant Not to Execute”, as limited by the provisions of said “Covenant Not to Execute”.’ ”

The above stipulation was not authorized by the probate court and was an attempt to limit the child’s rights.

Generally, a guardian may not waive legal rights on behalf of his ward, surrender or impair rights vested in the ward or impose any legal burden thereon. 39 Am. Jur.2d Guardian and Ward § 102, p. 86 (1968). There are exceptions to this rule which are not applicable to this case.

It is well-settled that a temporary guardian has only that power specifically granted him by the court. Tex.Prob.Code Ann. §§ 131, 133 (1956).

Under the facts and the applicable law the temporary guardian was not authorized to enter any such attempted stipulation; therefore, it is not binding upon the child.

Motion for rehearing overruled.


author: OSBORN, Justice.

text:
    BEACON HOMES, INC., Appellant, v. Mary AGUILAR, Appellee.
    No. 6582.
    Court of Civil Appeals of Texas, El Paso.
    April 27, 1977.
    Rehearing Denied May 25, 1977.
    Merkin & Gibson, Sidney K. Gibson, El Paso, for appellant.
    Santiesteban, Kennedy & Martin, Robert E. Kennedy, El Paso, for appellee.
   OPINION

OSBORN, Justice.

This case involves a dispute between a tenant and a landlord over the return of a security deposit. Following a jury trial, judgment was entered awarding the tenant the amount of the deposit, plus $100.00, plus treble damages and attorney’s fees as provided for in Article 5236e, Sec. 4(a), Tex. Rev.Civ.Stat.Ann. For reasons to be noted, we dismiss the appeal.

After the jury returned its verdict, judgment was entered for Mary Aguilar on April 22, 1976. More than ten days thereafter, the Appellant filed a motion for new trial, and on May 18, 1976, filed a motion for judgment non obstante veredicto and amended motion for new trial. Two days later, the Court entered an order disregarding the jury answer to Special Issue No. 1 in which the jury answered “No” when asked if the parties to the suit had entered into a rental agreement. The order also recites that on its own motion, the Court concluded that it should provide for additional attorney’s fees in the event of an appeal. On May 21,1976, the Court entered a judgment based upon the jury verdict, except as to Special Issue No. 1 which the Court concluded required an affirmative answer as a matter of law, awarded the same sums as in the first judgment, and awarded an additional $500.00 for attorney’s fees in the event the Appellant perfected an appeal to the Court of Civil Appeals and an additional $250.00 attorney’s fees in the event the Appellant filed an application for writ of error. Neither the May order nor the judgment mentioned the first judgment in the case.

On July 20, 1976, the Court entered another order overruling Appellant’s first amended motion for new trial which had been filed following the second judgment. Also on July 20,1976, a third judgment was entered. It was identical with the second judgment, except that it provided for attorney’s fees of $1,050.00 with a credit of $750.00 if no appeal was taken, and a credit of only $250.00 if no appeal was taken beyond the Court of Civil Appeals. Neither the July order nor judgment mentioned either of the earlier judgments. On August 11, 1976, Appellant deposited cash in lieu of a bond with the County Clerk and thereafter filed the record in this Court. We conclude, sua sponte, that the first judgment is the only valid judgment in this case and a timely appeal has not been perfected from that judgment. In Mullins v. Thomas, 136 Tex. 215, 150 S.W.2d 83 (1941), the Court said: “ * * * the rule is well settled that the entry of a second judgment in the same case is not a vacation of the first, and that if there is nothing to show the first was vacated, the second is a nullity.”

Clearly, Rule 301, Tex.R.Civ.P., provides for only one final judgment in any cause. Following the holding in the Mullins case, subsequent decisions have consistently held that the entry of a second judgment in the same case is not a vacation of the first, and that if there is nothing to show the first judgment was vacated, the second is a nullity. Fugitt v. Slay, 329 S.W.2d 358 (Tex.Civ. App.—Dallas 1959, writ dism’d); King v. Ivans, 429 S.W.2d 646 (Tex.Civ.App.—Tyler 1968, no writ); Dickerson v. Mack Financial Corporation, 452 S.W.2d 552 (Tex.Civ.App.—Houston [1st Dist.] 1969, writ ref’d n.r.e.).

In neither the second nor the third judgment nor the orders preceding such judgments did the Court indicate an intention to set aside or vacate its prior judgment. By reading either the second or the third judgment, one would never know nor suspect that a prior judgment had been entered, and one would never know that the Court intended by the subsequent judgments to set aside, vacate, or modify an earlier judgment in the same case. Thus, we conclude that the second and third judgments are a nullity. Since the cash bond was not filed within thirty days after the entry of the first judgment, as required by Rule 356, Tex.R.Civ.P., the appeal has not been perfected. The appeal is dismissed.

ON MOTION FOR REHEARING

The Appellant has filed a forceful motion for rehearing urging that we erred in holding that the second and third judgments are a nullity, and that we erred in holding that there is nothing in the second or third judgments or the orders preceding such judgments to indicate an intention by the trial Court to set aside or vacate its prior judgment.

Relying primarily upon Federal Underwriters Exchange v. Bailey, 175 S.W.2d 618 (Tex.Civ.App.—Dallas 1943, writ ref’d w.o. m.), Appellant urges that because the second judgment set aside the jury’s answer to Special Issue No. 1, provided additional attorney’s fees in the event of an appeal, and provided for interest from the date of the second judgment, that clearly the trial Court intended to vacate and set aside the first judgment, even though the second judgment does not expressly so state. If these changes alone vacate and set aside the first judgment, even though the Court does not so state in the second judgment, then the second judgment has been set aside and vacated by the third judgment which changed the provision for attorney’s fees on appeal and provided that interest would run from the date of the third judgment. Apparently, this has been the Appellant’s belief throughout these proceedings because the certificate of cash deposit filed by the Appellant in lieu of a cash bond reflects that the deposit was made to appeal from a judgment entered on July 20, 1976. In addition, the last point in the brief of Appellant concerns a complaint about attorney’s fees as provided for in the judgment signed and entered July 20, 1976.

If we should sustain the Appellant’s motion for rehearing and conclude that the second judgment vacated and set aside the first judgment, and that the third judgment vacated and set aside the second judgment, the Appellant would be before this Court without any assigned errors for our consideration. No motion for new trial was filed in the trial Court following the entry of the third judgment. This being a jury-tried case, a motion for new trial is a prerequisite to an appeal under Rule 324, Tex.R.Civ.P. All of the Appellant’s points of error in its original brief reflect that they are germane to an amended motion for new trial, and the amended motion for new trial filed on June 17, 1976, is expressly stated to be an attack upon the judgment “rendered * * on May 21, 1976.” There being no motion for new trial following the judgment entered on July 20, 1976, any error required to be assigned by such a motion has been waived. Should we be mistaken about the validity of the July judgment, we have examined the record and find no fundamental error.

The Appellant’s motion for rehearing is overruled.


author: PER CURIAM.

text:
    Jerry JOHNSON, Appellant, v. Rosa Lee BARGE, Appellee.
    No. 21704.
    Court of Civil Appeals of Texas, Dallas.
    April 28, 1977.
    Rehearing Denied May 19, 1977.

      Edith L. James, Dallas, for appellant.
    Roy L. Stacy, Bradshaw & Bynum, Dallas, for appellee.
   PER CURIAM.

Appellant, Jerry Johnson, has filed a motion to require the clerk of this court to docket his appeal from an order sustaining a contest to his pauper’s oath. The question before the court is whether we have jurisdiction over such an appeal. We hold that such an order is interlocutory and not appealable and, accordingly, overrule the motion.

Judgment was rendered on November 5, 1976, and appellant’s amended motion for new trial was overruled on December 10, 1976. An affidavit in lieu of cost bond was filed within the prescribed time, and a contest to that affidavit was subsequently sustained on February 4, 1977. By that time the thirty-day period prescribed by Tex.R. Civ.P. 356 for filing a cost bond had passed, and the only way the primary appeal can now be heard is by appellate review and reversal of the order sustaining the pauper’s oath contest.

That order, however, cannot be reviewed by an ordinary appeal because it is interlocutory in nature. Florek v. Shaw, 357 S.W.2d 769, 770 (Tex.Civ.App.—Dallas 1962, no writ); Burleson v. Rawlins, 174 S.W.2d 979, 980 (Tex.Civ.App.—Dallas 1943, no writ). Appellant’s only procedural remedy in such a case is to seek a writ of mandamus to direct the trial judge to require preparation of the record without cost on the basis of the pauper s affidavit. Williams v. Maynard, 515 S.W.2d 9, 11 (Tex.Civ.App.—Austin 1974, writ dism’d); Burleson v. Rawlins, supra. This attempted appeal cannot be considered as an application for a writ of mandamus. Even if it were so considered, the primary appeal would still fail. No record has been timely tendered for the primary appeal, and the time prescribed by Tex.R.Civ.P. 21c for filing a motion to extend the filing date has now expired. We recognize that appellant could not have filed the record without obtaining a writ of mandamus, but we could have extended the filing date under rule 21c if a timely and proper motion had been filed. Although appellant did file a motion to extend, it was overruled because it did not reflect the date of the judgment upon which the appeal was based. Without such a showing, we were unable to determine whether the motion had been filed within the time allowed under rule 21c.

We hold, therefore, that our clerk acted within her authority in refusing to file this appeal. When the clerk feels that a prospective appeal would not be properly before the court, she is authorized to refuse filing pending a decision by the court. Tex. R.Civ.P. 388. Since we agree with the clerk’s jurisdictional opinion, appellant’s motion is overruled.


author: GUITTARD, Chief Justice.

text:
    GOURMET, INC., Appellant, v. Charles W. HURLEY, Appellee.
    No. 19193.
    Court of Civil Appeals of Texas, Dallas.
    April 29, 1977.
    Rehearing Denied May 26, 1977.

      Joseph Hawryluk, Dallas, for appellant.
    Harold E. Vanberg, Law Office of Davis A. Witts, Dallas, for appellee.
   GUITTARD, Chief Justice.

This case is before us on writ of error from a default judgment against a nonresident corporation. Process was served under Texas Revised Civil Statutes Annotated, article 2031b (Vernon 1964), by delivering the citation, with a copy of the petition, to the Secretary of State, who forwarded the papers to the defendant corporation in New York. The principal question is whether service was ineffective because the petition does not allege the facts which authorize service on the Secretary of State under article 2031b. We hold that service is ineffective for that reason, even though an amended petition was filed before the default judgment was taken and even though sufficient evidence was offered at the hearing to establish the necessary jurisdictional-facts.

Plaintiff asserts defendant’s amenability to process under section 3 of article 2031b, which provides as follows:

Sec. 3. Any foreign corporation, association, joint stock company, partnership, or non-resident natural person that engages in business in this State, irrespective of any Statute or law respecting designation or maintenance of resident agents, and does not maintain a place of regular business in this State or a designated agent upon whom service may be made upon causes of action arising out of such business done in this State, the act or acts of engaging in such business within this State shall be deemed equivalent to an appointment by such foreign corporation, joint stock company, association, partnership, or non-resident natural person of the Secretary of State of Texas as agent upon whom service of process may be made in any action, suit or proceedings arising out of such business done in this State, wherein such corporation, joint stock company, association, partnership, or non-resident natural person is a party or is to be made a party. [Emphasis added.]

The original petition, which was attached to the process served on the Secretary of State and forwarded to defendant in New York, alleges:

Defendant is a New York corporation doing business in the State of Texas, and service of process may be had on its President, Earle R. MacAusland, at 777 Third Avenue, New York, New York 10017, or through the Secretary of State of the State of Texas, Austin, Texas.

In an amended petition filed on the day the default judgment was signed, plaintiff added allegations to the effect that defendant has “no designated registered agent for service of process in Texas and maintains no regular place of business.” We have before us a statement of facts containing the evidence offered at the hearing, including exhibits which we assume, without deciding, to be sufficient to establish the jurisdictional allegations of the amended petition.

Defendant contends that the court acquired no personal jurisdiction over it because plaintiff failed to serve on the Secretary of State a petition containing allegations of the jurisdictional facts required by article 2031b. Plaintiff seeks to uphold the judgment on the ground that the statute does not require that the jurisdictional facts be alleged in the petition, but only that the trial court must be satisfied from the record made at the hearing that the necessary jurisdictional facts exist.

We conclude that defendant’s position is correct. Although the statute does not by its terms require that the jurisdictional facts be alleged in the petition, the supreme court, in applying the statute, has declared that such facts must be alleged. In McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965), a default judgment was reversed on the ground that the petition did not allege that the nonresident defendant “does not maintain a place of regular business in this state or a designated agent upon whom service may be made,” within article 2031b, section 3. The court said that the rule ordinarily applying to default judgments that pleadings must be construed in favor of the pleader does not apply with respect to jurisdictional facts, since there is no presumption of due service on direct review of a default judgment. 388 S.W.2d at 929. The court went on to say that since jurisdiction must affirmatively appear on the face of the record, plaintiff has the burden of making sufficient allegations to bring the defendant within its provisions. Id. at 930.

Again, in Whitney v.L&L Realty Corp., 500 S.W.2d 94, 95 (Tex.1973), the supreme court declared:

A record showing of jurisdiction necessary to support a default judgment upon substituted service, such as we have here, must meet two major requirements: (1) The pleadings must allege facts which, if true, would make the defendant responsible to answer, — or in the language of Rule 120a, contain allegations making the defendant “amenable to process” by the use of the long-arm statute; and (2) there must be proof in the record that the defendant was, in fact, served in the manner required by statute.

Plaintiff argues that neither McKanna nor Whitney is controlling here because neither dealt with a situation in which the jurisdictional facts omitted in the petition were supplied by proof at the default hearing. McKanna, he says, merely requires that the jurisdictional facts be shown “on the face of the record,” and he insists that the exhibits attached to the statement of facts are a part of the record which the trial court was authorized to consider for the purpose of determining whether process had been served as required by the statute. Moreover, he argues that the statement in Whitney concerning the necessity of pleading jurisdictional facts is dictum, since the only question in that case was whether a default judgment should be reversed for lack of proof that the Secretary of State had forwarded process to the defendant, as the statute requires.

We recognize that neither McKan-na nor Whitney dealt with a case in which jurisdictional facts were established by evidence, though not alleged in the petition served on the defendant. To determine whether a default judgment should be upheld in such a situation, we must consider the purpose of requiring such an allegation. We conclude that the purpose is to give the nonresident defendant notice of the facts on which plaintiff will rely as authorizing exercise of jurisdiction over defendant’s person on substituted service. Unless the petition states the grounds of jurisdiction, the defendant is not in a position to make an informed decision as to whether he should appear and defend the suit, make a special appearance to contest jurisdiction, or let the judgment go by default and resist its enforcement in his own state on due process grounds. If the grounds of jurisdiction are alleged and defendant does not make a special appearance to contest them, those allegations, like other fact allegations in the petition, may be taken as established by the defendant’s default, and there is no need to examine, the evidence to determine whether the court has jurisdiction over the person of the defendant.

This analysis of the purpose of requiring the petition to allege jurisdictional facts is helpful in understanding the statement in McKanna that jurisdiction “must affirmatively appear on the face of the record.” The term “face of the record” is used in contradistinction to a complete record, which would include the evidence. It is equivalent to the common-law judgment roll, on which an officer of the court, before the days of written pleadings, recorded the issues to be litigated and the court’s disposition of those issues. Permian Oil Co. v. Smith, 129 Tex. 413, 107 S.W.2d 564, 566 (1937). A statute, now repealed, authorizing consideration on appeal of errors not assigned but “apparent on the face of the record,” was construed as including only “fundamental” errors, which could be determined without an examination of the evidence. Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S.W. 533, 537 (1909); Heard v. Nichols, 293 S.W. 805 (Tex.Com.App.1927, jdgmt. adopted); and see Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979, 982 (1947). In the light of these cases we interpret the term “face of the record,” as used in McKanna, as referring only to the judgment and filed papers, which would be included in the transcript on appeal, and not as extending to evidence introduced at a hearing, whether written or oral, which would be included in a statement of facts. This interpretation is consistent with the statement in Whitney, above quoted, that the necessary jurisdictional facts must be alleged in the pleadings.

The question then arises as to why an allegation in the petition, without proof, should be taken as establishing the necessary jurisdictional facts. Ordinarily pleadings are not evidence, but no evidence is necessary to support a default judgment because defendant’s failure to answer is taken as admitting the allegations of the petition. Long v. Wortham, 4 Tex. 381 (1849); Nixon v. Nixon, 348 S.W.2d 434, 437 (Tex.Civ.App.—Houston 1961, writ ref’d n. r. e.). Proof is required only with respect to damages that are unliquidated or not proved by an instrument in writing. Tex.R. Civ.P. 243; Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312, 314 (Tex.Civ.App.—Dallas 1975, writ ref’d). Consequently, in accepting the allegations of the petition as determining jurisdiction, the supreme court appears to have treated the jurisdictional allegations as admitted by the default, as the court would treat any allegation other than one of the amount of damages.

This conclusion may seem anomalous, since the defendant cannot be said to have defaulted unless the court had jurisdiction over his person. Nevertheless, when the challenge to personal jurisdiction is not lack of actual notice of the suit, but rather that the jurisdictional prerequisites to substituted service are not satisfied, jurisdictional allegations, like allegations of liability, may properly be taken as admitted if defendant does not appear to contest them. Thus, if such allegations are sufficient and uncontested, they establish jurisdiction, but if they are not sufficient, no jurisdiction is shown.

We conclude that the statements in McKanna and Whitney to the effect that the petition must allege the jurisdictional facts are applicable here, and that unless such facts are alleged in the petition attached to the process served on the defendant, they cannot be taken as admitted, and jurisdiction cannot be established by proof of facts of which the defendant has not been notified by the allegations of that petition. Accordingly, we hold that in the absence of sufficient allegations of jurisdiction in the petition attached to the process as served, the court acquires no personal jurisdiction by substituted service.

Reversed and remanded.


author: BISSETT, Justice.

text:
    Tasha PATE by next friend Ann Pate, Appellant, v. E. B. YEAGER et ux., Appellees.
    No. 1191.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 29, 1977.
    Rehearing Denied June 23, 1977.

      Wendell S. Loomis, Houston, for appellant.
    Richard A. Hall, Branscomb, Gary, Thom-asson & Hall, Corpus Christi, for appellees.
   OPINION

BISSETT, Justice.

This is a personal injury suit which was brought by Tasha Pate, a minor, by her mother as next .friend, against Mr. and Mrs. E. B. Yeager to recover damages for personal injuries alleged to have been inflicted upon her when a monkey, owned by the Yeagers, bit her finger. Trial was to a jury, which answered all liability issues favorably to defendants. The trial judge rendered a take nothing judgment. Plaintiff has appealed.

At the time of the occurrence in question (June 25, 1970), Tasha, a girl, was approximately four and one-half (4V2) years old. She was about eleven and one-half (11½) years of age when the case was tried in July, 1976.

Plaintiff’s suit is founded upon: 1) strict liability for knowingly keeping a dangerous and vicious animal who would attack any stranger who placed his or her hand within the monkey’s cage, and 2) negligence in failing to keep the animal confined in a cage that made it impossible for a person, such as plaintiff, to insert a hand inside the cage. However, issues on negligence were neither requested nor submitted.

The jury, in response to the liability issues that were submitted, answered: the monkey, on June 20, 1970, was not “an animal of such a nature as to be vicious.” (Special Issue No. 1); plaintiff did “provoke or excite the monkey” (Special Issue No. 3).

Plaintiff objected to the submission of Special issue No. 1 for the reason that it was “not within the province of the jury to decide, but was a law question to be decided by the trial court in that the animal, being admittedly a monkey, was a wild animal and is an unreclaimed, unreconcilable wild animal, and as a matter of law was an unpredictable, vicious animal.” She objected to the submission of Special Issue No. 3 on the ground that “there is no evidence, or insufficient evidence, from which the child, Tasha Pate, could be found by the jury to have excited or provoked the monkey.”

Plaintiff, in point 2 contends that the trial court “erred in submitting Special Issue No. 1.” She asserts in point 6 that the trial court “erred in submitting Special issue No. 3.” No other grounds are set out in the points. We are unable to determine from the statement and argument pertaining to each point the specific error which is relied upon by plaintiff since the statement and argument in plaintiff’s brief group the points with other points which are totally unrelated to points 2 and 6. We, therefore, hold that the points, as set out in the brief, are too vague and general to be considered in this appeal. They do not direct this Court’s attention to any particular error. They do nothing more than assert error in submitting the issues. They do not comply with the requirement of Rule 418, T.R.C.P. Blackmon & Associates, Inc. v. Palmer Building Supplies and Specialties, Inc., 463 S.W.2d 228 (Tex.Civ.App., Corpus Christi 1971, writ ref’d n. r. e.); Pleasant Grove Builders, Inc. v. Phillips, 355 S.W.2d 818 (Tex.Civ.App., Dallas 1962, writ ref’d n. r. e.); Stolte v. Mack Financial Corporation, 457 S.W.2d 172 (Tex.Civ.App., Texarkana 1970, no writ); Wagon Wheel Club, Inc., v. Restaurant Equipment & Supply Co., 410 S.W.2d 788 (Tex.Civ.App., San Antonio 1967, no writ). Points 2 and 6 are overruled.

Plaintiff contends in point 1 that “the court erred in failing to rule that a monkey is an animus ferae naturae (an animal with a wild nature or disposition) as a matter of law.” In point 3, it is asserted that “the court erred in failing to rule, as a matter of law, that a keeper of a wild animal is absolutely liable for its acts.” Plaintiff further says in point 4 that “the court erred in failing to rule, as a matter of law, that it is not necessary for show the animal had committed prior dangerous acts for absolute liability to attack.”

In most jurisdictions, wild animals, as opposed to domestic animals, are classified into two classes: 1) those, which, because of habit, mode of life, or natural instinct are of a savage and vicious nature and are incapable of being domesticated, and 2) those which may be domesticated to the point that they lost their native ferocity. In the latter class, where the animal in its natural state is a wild animal, but where it is capable of being domesticated and tamed, the general rule is that the owner is not liable for injuries caused by the domesticated (wild) animal unless .negligence in the manner of keeping it is shown, or unless its propensity to attack was known to the owner or should have been known to him. See 3A C.J.S. Animals §§ 3, 170, 176.

The Supreme Court of Texas spoke to the issue in Marshall v. Ranne, 511 S.W.2d 255 (Tex.Sup.1974), where it held that “suits for damages caused by vicious animals should be governed by principles of strict liability”, and approved the rule as stated in Restatement of Torts, § 507 (1938), which reads:

“§ 507. LIABILITY OF POSSESSOR OF WILD ANIMAL.
Except as stated in §§ 508 and 517, a possessor of a wild animal is subject to liability to others, except trespassers on his land, for such harm done by the animal to their persons, lands or chattels as results from a dangerous propensity which is characteristic of wild animals of its class or of which the possessor has reason to know, although he has exercised the utmost care to confine the animal or otherwise prevent it from doing harm.”

The Court, on 511 S.W.2d page 259 of the published opinion, further stated:

“. . . All animals are not vicious and a possessor of a non-vieious animal may be subject to liability for his negligent handling of such an animal. . . .”

In The Congress and Empire Spring Company v. Edgar, 99 U.S. 645, 25 L.Ed. 487 (1879) a particular large buck from among several deer attacked and injured the plaintiff. The court held that deer, although ferae naturae, may be domesticated, and when that is done, it becomes an animal of tame nature; and, in order to hold the owner liable for the hurt done by the deer, the owner must have had prior notice that the animal was vicious, or must have been negligent in some way.

The case of Abrevaya v. Palace Theatre & Realty Co., 25 Misc.2d 600, 197 N.Y.S.2d 27 (Sup.Ct.1960), held that whether or not the character of the monkey which caused injury to the plaintiff was vicious is a fact issue, and refused to hold the owner liable as a matter of law.

Plaintiff relies on Copley v. Wills, 152 S.W. 830 (Tex.Civ.App., Dallas 1913, no writ), in supporting her contention that defendants, the possessor of a “wild” animal is strictly liable for any damage caused by the animal regardless of the animal’s character and whether the animal, itself, is “vicious”. That case is not controlling of the case at bar. Our Supreme Court, in Marshall v. Ranne, supra, characterized the action in Copley v. Willis as “an action for strict liability for keeping a vicious animal which one knew or had reason to know was vicious.” That is not true of the instant case.

Here, the jury heard testimony that the monkey who bit plaintiff was a three-pound monkey, named “Mr. Jim”. There is evidence of probative value that he was a family pet of 26 years duration; he was regularly petted; he played with children; he had never before bitten a child.

On or about June 25, 1970, Tasha, at the invitation of Theresa, a 10 year old grandchild of defendants, went to defendants’ house to see the monkey, which was kept in a cage in the back yard. Theresa told her where she should place her hand so that the monkey “could reach out his hand and shake hands with her.” Theresa did not remember anything that followed until she saw Tasha’s hand inside the cage, when the monkey was biting her finger.

The record is not clear as to how Tasha’s hand got inside the cage. Tasha said: “I’m not sure where I stuck my hand,” but “I wiggled it . and the monkey came up and grabbed my hand.” She further testified: “I started pulling it back, like we were playing tug-of-war with my finger, I guess, and then he got it up to his mouth, pulled his head sort of to my finger, then he bit.”

There is no evidence that Mr. Jim ever deliberately attacked any person, although there is testimony that about two years before the occurrence in question he bit a Mr. Gene Brown. However, on that occasion, according to Mr. Yeager, the “monkey had a considerable teasing,” and he was given “cigarettes, which made him nervous.”

There is no evidence that either of the defendants had notice or had any reason to believe that monkeys generally, and Mr. Jim in particular, were of a vicious nature or had a bad disposition. A monkey’s propensity in this regard and the Yeager’s knowledge of Mr. Jim’s character were fact issues which the trial court properly submitted to the jury. Whether Mr. Jim’s bite was caused by provocation or excitement was also a fact question.

We hold that monkeys of the type here involved are properly classified as wild animals which are capable of being domesticated or tamed. The evidence shows conclusively that Mr. Jim was domesticated. Therefore, in order to hold the defendants liable for injuries caused by Mr. Jim, there must be proof that defendants knew that the animal was accustomed to do mischief, or that the defendants committed acts of negligence which proximately caused the injury. The question here presented is one of fact. It is not a question of law and was not resolved as a matter of law. Points 1, 3 and 4 are overruled.

Plaintiffs point 5 reads:

“The court erred in failing to rule, as a matter of law, that a four year old child is exempt from the charge of contributory negligence.”

Apparently the point is directed towards the submission of Special Issue No. 3, where, as has been stated, the court inquired whether or not Tasha, the plaintiff, provoked or excited Mr. Jim, and the jury answered: “she did.” In the plaintiff’s first amended motion for new trial, the statement is made that the trial court erred in overruling plaintiffs objection to the submission of the issue because it, in effect, placed “a burden on Tasha Pate, four years old at the time, of contributory negligence.” That objection was made for the first time in the amended motion for new trial; therefore, even if meritorious, it was not preserved as a valid point on appeal. Furthermore, the trial court’s judgment is not based upon the presence or absence of contributory negligence. The error, if any, and now claimed, was waived since it was not included in the objection to the charge. Point 5 has no merit, and is overruled. Point 8 reads:

“The court erred in failing to grant a new trial because the jury’s answer to Special Issues 4, 5, and 6 are against the great weight and preponderance of the evidence and the amounts are inadequate.”

The jury, in its answer to the issues, found that plaintiff was entitled to $77.00 for medical expenses (Special Issue No. 4), and $4,500.00 for physical pain and mental anguish, both past and present, and for physical impairment (Special Issue No. 6). It further found that Ann Pate, the mother of Tasha, was not entitled to recover anything for her loss of Tasha’s services which resulted from the injury which Tasha sustained (Special Issue No. 5).

The point lodges two separate and distinct complaints (against the great weight and preponderance of the evidence, and inadequate awards). The point also complains of three separate and distinct special issues relating to jury findings with respect to damages. Without regard to the lack of merit of the matters complained of in point 8, the point is clearly multifarious. It complains of answers to three separate issues, not related to one another, and asserts two different reasons why the answers of the jury to each of the three separate issues is incorrect. Multifarious assignments are not considered on appeal. Ives v. Watson, 521 S.W.2d 930 (Tex.Civ.App., Beaumont 1975, writ ref’d n. r. e.); Tex-Wash Enterprises, Inc. v. Robna, Inc., 488 S.W.2d 504 (Tex.Civ.App., Waco 1972, writ ref’d n. r. e.); T J Service Company v. United States Fidelity & Guaranty Company, 472 S.W.2d 168 (Tex.Civ.App., Corpus Christi 1971, writ ref’d n. r. e.); Barber v. Corpus Christi Bank & Trust, 506 S.W.2d 254 (Tex.Civ.App., Corpus Christi 1974, no writ).

Not only is point 8 multifarious, it is also immaterial. In view of the plaintiff’s failure to obtain findings of fact which would render the defendants liable, any error in the jury’s answers to the damage issues is immaterial, and affords no basis for a reversal of the trial court’s judgment. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334 (1939, opinion adopted). Point 8 is overruled.

We have carefully considered point 7, plaintiff’s remaining point of error. The point is overruled.

The judgment of the trial court is AFFIRMED.


text:
    John W. WILLIS, Appellant, v. NORTH DALLAS BANK & TRUST COMPANY, Appellee.
    No. 19264.
    Court of Civil Appeals of Texas, Dallas.
    May 9, 1977.
    John W. Willis, pro se.
    John Emmett, Dallas, for appellee.
   ON MOTION TO TRANSFER

GUITTARD, Chief Justice.

Appellant has moved for a transfer of this appeal on the ground that two of the justices of this court sat as trial judges in causes relating to the mattér now on appeal. On consideration of the motion, it appears that two members of this court, though not technically disqualified, have determined that they should recuse themselves because of their previous experience with the parties and the matter in controversy.

We have no authority under the law to make such a transfer. Article 1819 of Texas Revised Civil Statutes Annotated (Vernon 1964) authorizes another court of civil appeals to act for us in certain circumstances. This statute provides in part:

[I]f any Court of Civil Appeals having jurisdiction of a cause, matter or controversy requiring immediate action shall, by.reason of the illness or absence or unavailability of at least two (2) of the Judges thereof, be unable to take such immediate action, then the nearest available Court of Civil Appeals may take such action as may be required in regard to said cause, matter or controversy under such rules as the Supreme Court may prescribe.

The procedure under this statute is prescribed by rule 385a of the Texas Rules of Civil Procedure, which provides that if the unavailability of the court having jurisdiction to take “immediate action” is established by certificate of the clerk or any justice of the court, then the nearest court of civil appeals may take such action. We conclude that neither article 1819 nor rule 385a is applicable here because nothing on this appeal requires immediate action. Appellant’s brief shows that this is an appeal from a judgment in a trespass-to-try-title action, and appellant has suggested no reason why the appeal should not be heard in normal course. Consequently, there is no occasion for a certificate under rule 385a.

The only authority for transfer of a case from one court of civil appeals to another in a situation like the present is that conferred on the supreme court by article 1738, Texas Revised Civil Statutes Annotated (Vernon 1962), to do so when, in the opinion of the supreme court, there is good cause for such a transfer. Accordingly, by copy of this opinion to the supreme court, we are certifying that two of the justices of this court have recused themselves on the ground stated, so that the supreme court may determine whether good cause exists for transferring the case to another court of civil appeals.