author: DAUGHTREY, Judge.

text:
    William Wayne HONEYCUTT, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Sept. 10, 1976.
    Certiorari Denied by Supreme Court Oct. 25, 1976.

      William Ortwein and Robert H. Feeney, Chattanooga, for appellant.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Stephen M. Bevil and Thomas J. Evans, Asst. Dist. Attys. Gen., Chattanooga, for appellee.
   OPINION

DAUGHTREY, Judge.

William Wayne Honeycutt was charged with first degree murder, but was convicted by a Hamilton County jury of second degree murder and sentenced to ten years in the penitentiary. On appeal he attacks the sufficiency of the evidence to support the jury’s verdict and alleges various errors occurring below which he contends entitle him to a new trial. For the reasons set out in this opinion, we disagree and we therefore affirm the judgment of the trial court.

I.

On October 26, 1974 the defendant went with his wife to a costume Halloween party, accompanied by the victim, Charles Dunn, Dunn’s wife and another couple. The defendant had been drinking moderately earlier in the evening, and he continued to imbibe at the party. Apparently he made some unwelcomed comments to one or two of the women guests, and as the evening wore on he engaged in other increasingly disorderly conduct. His behavior prompted his wife to apologize to the party’s hosts, and she sought help from some of the defendant’s friends in an effort to get him to the car so that she could drive him home. One of the people who came to her assistance was the victim, Charles Dunn. For a time the defendant resisted Dunn’s efforts to get him outside, grabbing Dunn’s tie and using loud and abusive language. Finally Dunn “put a full Nelson” on the defendant, walking him forcibly to the car which was parked in the driveway. There Mrs. Ho-neycutt was waiting for him, already behind the steering wheel. The defendant stood next to the open door on the passenger side of his car for some period of time talking to Dunn, who was facing him. The defendant, obviously intoxicated, became maudlin, saying repeatedly that his wife was too good for him, that he was tired of living, and that he wanted to die. The victim made apparently successful efforts to calm Honeycutt, and it appeared that the defendant was getting in the ear when suddenly and inexplicably he grabbed an automatic pistol from under the floormat of the car, wheeled and fired a shot into the yard, fired three shots at the victim, pointed the pistol into the car and fired again, striking his wife in the thigh. He also aimed the gun at the head of a witness who was standing on the driver’s side of the car, but the gun jammed and would not fire. This witness quickly opened the car door and pulled Mrs. Honeycutt out of the car and to safety. He was trying to get to the other side of the car to restrain the defendant at the same time Honeycutt was entering the car and sliding over to the driver’s seat. As he came around the end of the car, the witness saw the victim’s head beneath one wheel of the automobile and pulled Dunn’s body out of the way just as the defendant backed down the driveway. Honeycutt hit another car as he did so, and then fled at a high rate of speed.

The victim had sustained two wounds to his upper chest, both of which were described by the medical expert as “instantly fatal,” and a less serious wound to his leg. Mrs. Honeycutt was not seriously wounded. The next day the defendant, accompanied by his lawyer, turned himself over to police officials and also gave them the pistol he had used in the shooting.

The defendant and his wife testified, along with several character witnesses. Honeycutt maintained that on the day of the shooting he was disturbed over recent business reverses, had become excessively intoxicated, and reached for the gun intending suicide. He and his wife attributed her wound to the accidental discharge of the pistol during a struggle between Honeycutt and Dunn for control of the gun. But Honeycutt was unable to explain how Dunn had gotten shot, saying that his vision and hearing became “blurred” at the time the shots were fired. He testified that he fled because he intended to get off by himself and commit suicide, and that he failed in this effort because the pistol had jammed and was no longer functional.

We think the evidence adequately supports the verdict. The defendant’s behavior was indeed puzzling, given the fact that there was no history of trouble between Honeycutt and Dunn. But while the record shows no proof of premeditation and the jury apparently thought there was sufficient proof of drunkenness to negate the intent necessary to support a first degree murder conviction, there was also no evidence of any provocation which legally could have reduced the degree of homicide to voluntary manslaughter. The jury weighed the defendant’s contention that the shooting was somehow accidental or unintentional and rejected his version of the facts, as is their prerogative. We cannot say the evidence preponderates against their verdict, and the assignment of error going to the sufficiency of the evidence is therefore overruled.

II.

The defendant complains further of certain procedural and evidentiary errors which allegedly occurred at his trial. He assigns as error, for example, the court’s refusal to permit certain hypothetical questions which were put to the medical expert out of the jury’s hearing to be repeated before the jury. The judge did so after determining that not all the material facts necessary to support the requested expert opinion had been included in the question, and also that the issue as framed in the proposed hypothetical could be determined by the jurors themselves and thus was not appropriately the subject of an expert’s opinion. A review of the record indicates that the trial court was entirely correct in this ruling. Furthermore, the hypothetical question was asked out of order, so that not all the foundational facts were yet in the record, although defense counsel assured the court that they would later be made to appear. Nevertheless, this procedure effectively deprived the prosecutor of any meaningful cross-examination of the expert on this issue. Moreover, the question as posed required not only medical but also ballistical expertise and the witness had not been qualified as an expert in the latter field. Thus the proffered question was objectionable on several bases, see generally McCormick, Evidence §§ 13-14 (2d ed. 1972), and the trial judge did not abuse his discretion in refusing to allow it.

Next the defendant complains that the court erred in denying him the right to inspect copies of the pretrial statements of prosecution witnesses immediately following their direct testimony at trial. He claims that this right arises under 18 U.S.C. § 3500 and a case styled Hudgins v. State. No citation is given for the Hudgins decision, and the statute relied on applies only to federal cases. Although the Tennessee legislature has now adopted a version of the so-called “Jencks Act,” Public Acts 1976, ch. 628, the new state statute was not in effect at the time this case was tried. The assignment is therefore overruled.

The defendant also complains that he was prevented by the trial court from presenting unspecified evidence in rebuttal of the testimony by several of the State witnesses that they had not been instructed to refuse to talk to defense investigators. The trial judge correctly ruled that this proof would have constituted extrinsic evidence of a collateral matter and that it therefore was not admissible for impeachment purposes. See McCormick, Evidence § 47 (2d ed. 1972). This assignment of error is likewise overruled.

III.

Finally, the defendant alleges that the trial court committed several constitutional violations which entitle him to a new trial. He complains initially of the court’s order overruling his plea ⅛ abatement, which attacked the validity of the indictment on the grounds that (1) the occupational exemptions allowed under T.C.A. § 22-103 purportedly produced a non-representative grand jury, and (2) the requirement under T.C.A. § 40-1507 that the grand jury foreman be male is facially unconstitutional.

T.C.A. § 22-103 exempts from jury service “(a)ll persons holding office under the laws of the United States, or of this state; all employees of the railway mail service; all practicing attorneys, physicians, and clergymen; all acting professors or teachers of any college, school, or institution of learning; all members of fire companies; all persons over sixty-five (65) years of age, disabled by bodily infirmity, or specially exempted by any other positive law; all pharmacists registered under and in accordance with the laws of the state.” By his plea in abatement the defendant specifically complained that the effect of the statute is to produce an unrepresentative jury because it exempts 15,180 persons from the total Hamilton County population of 179,-379. Included in the defendant’s calculation are 5,238 federal employees and 4,761 T.V.A. employees.

The United States Supreme Court has recently spoken on the long-recognized requirement under the Sixth Amendment to the United States Constitution that a jury must be representative of a cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). In holding that the State could not constitutionally exempt women from jury service, because to do so would result in a nonrepre-sentative jury, the Court treated the question of occupational exemptions by way of dictum:

The States are free to grant exemptions from jury service to individuals in case of special hardship or incapacity and to those engaged in particular occupations the uninterrupted performance of which is critical to the community’s welfare. Rawlins v. Georgia, 201 U.S. 638, 26 S.Ct. 560, 50 L.Ed. 899 (1906). It would not appear that such exemptions would pose substantial threats that the remaining pool of jurors would not be representative of the community. 419 U.S. at 534, 95 S.Ct. at 700.

We think the defendant’s contention is fallacious for two reasons. First, it does not follow that federal employees are legally exempt under T.C.A. § 22-103, i. e., federal employees cannot necessarily be equated with federal “office holders.” Second, and even assuming arguendo that such persons are exempt under the statute, the defendant has failed to demonstrate that as a result cognizable groups have been excluded from service, thereby making the panels unrepresentative for purposes of the Sixth and Fourteenth Amendments. See, e. g., Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1872) (race); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954) (national origin); Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966), cert. denied 386 U.S. 991, 87 S.Ct. 1303, 18 L.Ed.2d 334 (1967) (economic status); Taylor v. Louisiana, supra (sex). We therefore conclude that this portion of the plea in abatement was without merit and was correctly overruled by the trial court.

Regarding the contention that T.C.A. § 40-1507 creates a constitutionally impermissible classification based on sex, we think this otherwise questionable statute is saved by the language in T.C.A. § 1-304 which provides that “words importing the masculine gender include the feminine and neuter.” Thus T.C.A. § 40-1507 would not per se prevent a woman from serving as the Hamilton County grand jury foreman, and in the absence of some proof that women have been systematically excluded from that office by the operation of the statute, we find no merit in the defendant’s position on this point. The assignment of error relating to the trial court’s failure to abate the indictment is therefore overruled.

Next the defendant alleges that the jury instruction given by the trial court concerning determination of the degree of homicide and the “presumption” of malice arising from the use of a deadly weapon violates the principle laid down in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). We have examined the court’s charge and have found it to be in all respects similar to the instruction in Armes v. State, 540 S.W.2d 279 (Tenn.Cr.App.1976). For the reasons expressed in that very able opinion by Judge Duncan, we find no error in the instruction given by the trial judge in this case.

By another error assigned in regard to the jury instruction, the defendant contends that the court in charging the jury on voluntary intoxication made an improper comment on the evidence, in violation of Article 6, Section 9 of the Tennessee Constitution. We have examined the jury charge and do not find this to be the case. The assignment is therefore overruled.

Lastly, the defendant complains of the trial court’s failure to declare a mistrial after the State had elicited from a police witness the fact of the defendant’s silence at the time he surrendered himself to police custody. The record shows the following exchange:

PROSECUTOR: Detective Davis, did you advise the defendant of his rights at that time?
WITNESS: Yes, sir, I did.
PROSECUTOR: Did you place him under arrest?
WITNESS: Yes, sir, I did.
PROSECUTOR: What if anything did he say to you, or did he make any statements to you about what had happened?
WITNESS: No, sir, he didn’t.

Out of the jury’s presence the trial judge overruled the motion for a mistrial made by the defendant immediately following this colloquy. However, the court found the question and its response to constitute an improper comment on the defendant’s constitutional right to remain silent and therefore “utterly prohibited” by law. While declining to declare a mistrial he did instruct the jury to disregard the question and the answer.

We agree that the prosecutor’s question and the elicited response were improper under Tennessee law. O’Brien v. State, 221 Tenn. 346, 426 S.W.2d 507, 508 (1968); Mays v. State, 495 S.W.2d 833, 836 (Tenn.Cr.App.1972); Sadler v. State, 534 S.W.2d 129, 131 (Tenn.Cr.App.1975). Cf. State v. Flanagan, 223 Tenn. 134, 443 S.W.2d 25 (1969). The United States Supreme Court and our state Supreme Court have also recently spoken on the related issue of using the defendant’s post-arrest silence for impeachment purposes, ruling that the practice is improper in light of the required warning given the defendant under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 264 (1966), that he has a right to remain silent. United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Braden v. State, 534 S.W.2d 657 (Tenn.1976). But in view of the trial court’s contemporaneous instruction to the jury and under the circumstances of this case, we think the error here was harmless.

The information concerning the defendant’s silence came during testimony describing the circumstances surrounding his self-surrender in the company of his attorney, and also his surrender of what turned out to be the murder weapon. There is no necessary implication that the State elicited the information in order to leave an inference of the defendant’s guilt, nor does it appear from the context that the jury would necessarily have drawn such an inference. The evidence concerning the absence of any statement by the defendant at the time of his surrender must be weighed against the other, properly ‘admitted evidence in order to determine its prejudicial effect on the minds of the jury. We think under all the circumstances any unfavorable effect would have been minimal, given the other overwhelming evidence tending to establish the defendant’s guilt. Compare Doyle v. Ohio, supra, 426 U.S. at 618, 96 S.Ct. at 2245; Sadler v. State, supra, at 131. It certainly cannot be said to have affected the outcome of the trial. See T.C.A. § 27-117. We are therefore satisfied beyond a reasonable doubt that the error committed by the prosecutor was harmless under the facts of this case. It follows that the trial judge did not abuse his discretion in refusing to grant a mistrial and that the defendant’s assignment of error in this regard must be overruled.

Finding no error requiring reversal, we affirm the judgment of the trial court.

DWYER and O’BRIEN, JJ., concur.

      . These figures were submitted by stipulation upon oral argument on the pleading.


source: Caselaw Access Project

author: RUSSELL, Judge.

license: Public Domain

text:
    Verne BOLEN, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Sept. 20, 1976.
    Certiorari Denied by Supreme Court Dec. 6, 1976.

      Seth Norman, Nashville, James E. Walton, Springfield, Karl P. Warden, Franklin, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Michael E. Terry, Asst. Atty. Gen., O’Brien Price, Dist. Atty. Gen., Springfield, for appellee.
   RUSSELL, Judge.

OPINION

The appellant, Verne Bolen, was indicted for receiving stolen property of a value in excess of one hundred dollars, found guilty by a jury, and sentenced to five to ten years in the penitentiary.

We note at the outset that the trial court’s judgment was “guilty as charged for concealing stolen property”, an obvious error. The jury simply reported that it found the defendant guilty, and the charge was receiving. We modify the judgment to reflect that the conviction is for receiving stolen property of a value in excess of one hundred dollars.

The theory of the State was that Bolen, who owned and operated a plant wherein leather was a major item being processed, had for many years knowingly purchased bulk leather stolen from Genesco, Inc. Two men who had worked for Genesco and who admitted to having stolen leather and to selling it to Bolen over a period of years testified for the State. They contended that Bolen knew how the leather was being procured, that they always delivered it after regular hours, etc. Bolen, on the other hand, testified and contended that while he knew that the leather was coming from Genesco, Inc., that he thought that it was surplus and that the purchases were legitimate. We have not attempted to set out the evidence in detail supporting the opposing theories. The key, and the only real issue of fact, was Bolen’s guilty knowledge. The jury resolved that issue in favor of the State, and the evidence certainly does not preponderate against the verdict.

The first assignment of error complains of the introduction into evidence of the fruits of a warrantless search of Bolen’s trash dumpster. This search was made by a private detective and a police officer, and they had neither a search warrant nor probable cause. They found a box of scrap leather and a packing slip, tending to show that Genesco, Inc., leather was upon the premises. (Another such packing slip was introduced by the State without any competency question.) The packing slip taken from the trash container is also the subject of the second assignment of error, since when it was introduced it could not be explicitly identified nor was this deficiency overcome by the establishment of a chain of custody.

We hold that the packing slip was erroneously introduced, on both grounds. The witness who found it should either have identified it, or an unbroken custody chain established, as a condition precedent to the introduction. And we do not believe that a sufficient record was made to justify treating the trash dumpster as the receptacle of abandoned property then beyond the scope of any expectation of privacy and hence subject to unfettered exploration. The large enclosed container was shown to have been on Bolen’s private property, adjacent to what he described as a private driveway. The searcher had to use a board to climb up to where he could substantially enter the dumpster and make his search. We hold that in the state of the record when this evidence was admitted it was error to hold that such a warrantless search was reasonable and hence constitutional. While this property may very well have been abandoned, with no expectation of privacy remaining, this record is not fully enough developed to establish that point.

But these errors are both harmless, beyond a reasonable doubt. How could scrap leather and/or a packing slip tending to show that Genesco, Inc., leather was on the premises prejudice Bolen, when the only issue was whether or not he knew that the Genesco leather admittedly upon the premises was stolen? The leather scraps and the packing slip being in the trash dumpster harmonizes with both theories.

The third assignment of error questions the validity of the indictment, which clearly was returned by a Grand Jury consisting of only eleven members plus the foreman. One of the twelve Grand Jurors was a personal friend of the accused, and indicated privately to the foreman that she would prefer not to vote upon this proposed indictment. She was permitted by the foreman to leave the room, whereupon the eleven remaining members plus the foreman voted for a true bill, and the indictment was thus returned.

The Grand Juror who did not wish to vote was not legally disqualified, and should not have been permitted to leave the room. Had she been disqualified, T.C.A. § 40-1511 provides for the naming of a replacement. But her leaving the room was harmless error. If she had stayed and voted against the indictment it would have not invalidated it, since twelve votes remained. All that is required is twelve affirmative votes. Pybos v. State, 22 Tenn. 49; T.C.A. § 40-1706. The foreman has the same voting power as any other Grand Jur- or. T.C.A. § 40-1506. This was a valid indictment.

Finally, it is contended that the thieves were not corroborated, and therefore this conviction cannot stand. The thesis is that the thieves were accomplices of Bolen. We hold to the contrary, under the authority of Gann v. State, 2 Tenn.Cr.App. 230, 452 S.W.2d 685 (1969). We would add that substantial corroboration is present, also.

Affirmed as modified.

GALBREATH, J., and TILLMAN GRANT, Special Judge, concur.


text:
    STATE of Tennessee, Appellant, v. Condon GRAHAM, Appellee.
    Court of Criminal Appeals of Tennessee.
    Sept. 30, 1976.
    Certiorari Denied by Supreme Court Dec. 6, 1976.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Harold B. McDonough, Jr., Asst. Dist. Atty. Gen., Nashville, for appellant.
    Jack R. Brown, Chattanooga, for appel-lee.
   RUSSELL, Judge.

OPINION

This is an appeal by the State from the granting of the writ of habeas corpus to the appellee, Condon Graham, resulting in his release from the State penitentiary where he was serving a one year sentence upon a 1965 Hamilton County conviction for petit larceny. The order granting the writ apparently followed an “evidentiary hearing” at which the allegations of the petition were apparently stipulated to be true. We have before us no bill of exceptions, only a technical record.

The thrust of the habeas corpus petition is that Graham has already served the State sentence, because he had received a federal penitentiary sentence on December 23, 1964, which kept him incarcerated in the federal penitentiary in Atlanta, Georgia, until June 28, 1971, and that the State sentence was concurrent as a matter of law. The record shows that Graham’s attorney moved the Court in the State case to have the one year sentence adjudged concurrent with that much of the federal sentence already received, but the order of conviction in the State court entered June 25, 1965, simply expressly reserved that question. The conviction was appealed and subsequently affirmed by our Supreme Court. Graham v. State, 218 Tenn. 453, 404 S.W.2d 475 (1966).

The question before us is whether or not a State sentence, wherein the record is silent as to the judge’s intentions, is concurrent as a matter of law with a federal sentence already imposed. We hold that it is not, and reverse the order of the trial court releasing the appellee.

This is a case of first impression in Tennessee. We have held that the sentence of an escapee from Tennessee was not concurrent as a matter of law with subsequently imposed California sentences served while a fugitive from Tennessee. Carter v. State, Tenn.Cr.App., 523 S.W.2d 639 (1975). A panel of this Court has decided, in the case of Richard E. Eaker v. State, filed at Knoxville on February 5, 1976, unpublished and cited by the appellee, that a trial judge can run a sentence concurrent with that of a foreign court by expressly doing so.

The question at bar is explicitly addressed in the last paragraph of Rule 31(e) of the proposed Rules of Criminal Procedure adopted by our Supreme Court on January 28,1976, but not yet ratified by the Legislature, as follows:

“If the defendant has additional sentences or portions thereof to serve, as the result of conviction in other states or in federal court, the sentence imposed shall be consecutive thereto unless the court shall determine in the exercise of its discretion that good cause exists to run the sentence concurrently and explicitly so orders.”

We hold this to be the existing rule in Tennessee, there being no case law to the contrary, and it being in harmony with sound judicial administration.

It does not benefit the appellee that the trial judge never ruled upon the motion to run the sentences concurrently. The burden was upon counsel for Graham to obtain a favorable ruling; and, absent any ruling, the record is silent and the sentences are consecutive.

The writ of habeas corpus is quashed and the appellee is ordered returned to custody.

GALBREATH and DAUGHTREY, JJ., concur.


author: DWYER, Judge.

text:
    Jackie Marie WEBSTER, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 7, 1976.
    Certiorari Denied by Supreme Court Dec. 13, 1976.

      Dorothy B. Stulberg, Oak Ridge, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Robert B. Littleton, Asst. Atty. Gen., Nashville, James B. Scott, Dist. Atty. Gen., Clinton, for ap-pellee.
   OPINION

DWYER, Judge.

Two questions are presented to this court in the assignments of error filed by court appointed counsel contesting the validity of the judgment of the trial court without the intervention of a jury finding the appellant, Jackie Marie Webster, guilty of being an accessory after the fact, T.C.A. 39-113, with punishment of confinement for not less than one year nor more than one year. The assignments of error are that the evidence is insufficient and that the State failed to prove venue.

The evidence from our review reflects that the appellant was with Johnny Howard and Johnny Allen Dougherty on the afternoon of June 26,1975 when Dougherty robbed the E-Z Mart Store located in Anderson County on Highway 61. Prior to this holdup the appellant was observed in a car which pulled up in front of the Trading Post, a business house next to the E-Z Mart. She was in the front seat, but alighted after a conversation with the male driver, Dougherty, who also got out of the car. The appellant went into the Trading Post, accompanied by Dougherty, purchased some earrings and then returned to the car. Johnny Howard, who had been in the back seat of the car, took the driver’s position when Dougherty and appellant left the car. The owner of the Trading Post, upon becoming suspicious of the actions and behavior of the ear’s occupants, wrote down the license number of the automobile. After Dougherty had reentered the car and it had left the area, the E-Z Mart employee notified the owner of the Trading Post of the armed robbery with resulting disclosure by that individual of the license number and description of the car and its occupants.

A short time later, the report of the robbery and the description of the vehicle involved having been relayed over the police network, the sheriff of Anderson County saw the car and a high speed chase ensued. The ear successfully eluded the officer and was located later in Anderson County abandoned in front of Dougherty’s parents’ home.

The appellant’s statement given after her arrest and introduced into evidence to the Anderson County officers on July 3, 1975, which corresponds substantially with her testimony reflects that she had met the two men earlier in Knoxville; that she accompanied them to Anderson County; that when Dougherty made a statement he was going to get some money she could not get out of the car; that she saw he had a gun when they stopped in front of the trading post and felt she had no choice but to stay with them; that she had no knowledge that he was going to commit a robbery and that when the officers pursued them at a high rate of speed she could not get out of the car; that she was forced to stay with Dougherty that same night in Knoxville by three “dudes” who got her away from her boy friend; and that she was forced to go with him to the airport. In summation, she was an unwilling participant with no prior knowledge of any criminal intent of Dough-erty.

The certified copy of Dougherty’s guilty plea to committing the offense of armed robbery with punishment of confinement for ten years was introduced into evidence by the State.

The first argument ably advanced here and at the trial level on behalf of the appellant is that there is no evidence of any criminal intent shown by the evidence that the appellant harbored, concealed or aided Dougherty to escape from arrest which would make her guilty of being an accessory after the fact as proscribed by the statute. We think that intent is a matter for the jury (here, the court) and may be inferred from all of the facts and circumstances. Hall v. State, Tenn., 490 S.W.2d 495, 496 (1973). In other words, the court could infer that appellant had the intent to aid Dougherty in his escape after the robbery from the circumstances narrated in our summation of the evidence. The appellant accompanied Dougherty to the scene of the robbery, she knew he was armed and she could have stayed in the Trading Post, but instead, she was in the car with the motor running when the robbery was committed. She was in the car when the high speed chase occurred, she knew Dougherty had money on him, she stayed outside the hotel while he registered that night in Knoxville and she accompanied him to the airport the next day. We think these circumstances are ample facts from which the court could discredit her testimony as to not knowing of the robbery and being forced to accompany Dougherty during his flight.

The trial court saw and heard the testimony of the witnesses. His verdict endorsed the theory of the State that the appellant by accompanying Dougherty in his flight was aiding him to escape from the robbery. Wilson v. State, 190 Tenn. 592, 595, 230 S.W.2d 1014 (1950). We view his findings and credit those findings with the weight of a jury’s verdict. Bratton v. State, Tenn.Cr.App., 477 S.W.2d 754, 756 (1971).

The burden is upon the appellant to show here that the evidence preponderates against his findings. We do not think she has carried that burden. The evidence is sufficient. The assignment relating thereto is overruled.

With the locus criminis of the armed robbery being in Anderson County, the venue for that crime is, of course, there. With the acts of the appellant, which we have held to be sufficient to make her an accessory after the fact, occurring in both counties, Anderson and Knox, venue is in either county. T.C.A. 40-105. We think, accordingly, that probative force should be allowed the acts of appellant in relation to Dougherty in Knox County, as reflecting on the state of mind of the appellant during this entire episode. This assignment is overruled.

The judgment of the trial court is affirmed.

DUNCAN, J., and ERNEST PELLEG-RIN, Special Judge, concur.


author: PER CURIAM.

text:
    MILLER AND FREEMAN FORD, INC., Petitioner, v. GREATER HOUSTON BANK, Respondent.
    No. B-6301.
    Supreme Court of Texas.
    Dec. 15, 1976.
    Barlow, Lacy, Smith & Gay, Bill De La Garza, Houston, for petitioner.
    Law Offices of T. D. Smith, William E. Heitkamp, Houston, for respondent.
   PER CURIAM.

Respondent Greater Houston Bank instituted this action against Julieta Gomez to recover $991.20 due and unpaid upon a note given the Bank by Julieta for purchase of a Ford pickup. At the time the action was commenced the pickup was in the possession of petitioner Miller & Freeman Ford, Inc., being subject to a $1455.21 repair bill. Miller & Freeman was joined as a party defendant. The trial judge, recognizing that both the Bank and Miller & Freeman had assertable liens on the vehicle, ordered it seized by the sheriff and sold at auction. The $1,100 proceeds was deposited with the court to abide the event of judgment.

The Bank filed its motion for summary judgment, supported by affidavits setting forth the loan, default and a purchase money security interest perfected prior to the time that Miller & Freeman performed repairs on the automobile. In opposition to the Bank’s motion, and in support of its own motion for summary judgment, Miller & Freeman filed the affidavit of its president, wherein he averred on “personal knowledge” that repairs were made under the authorization of Manuel Gomez, the husband of Julieta, who had Julieta’s authority to contract for repairs.

The trial judge was of the opinion that Miller & Freeman had established a mechanic’s possessory lien which was superior to the security interest of the Bank, and entered judgment for Miller & Freeman. The court of civil appeals reversed. Acknowledging that under Gulf Coast State Bank v. Nelms, 525 S.W.2d 866 (Tex.1975), a mechanic’s possessory lien is entitled to priority over a purchase money security interest, the court nevertheless concluded that the president’s affidavit was not competent summary judgment proof of any such lien. The court also determined that the Bank’s motion for summary judgment should have been granted by the trial court, the only remaining summary judgment evidence showing the purchase money security interest, and rendered judgment that the Bank recover the proceeds from the sheriff’s sale. Tex.Civ.App., 540 S.W.2d 390.

We agree with the court of civil appeals that the president’s affidavit was incompetent, and could not support summary judgment in Miller & Freeman’s favor. An affidavit must “set forth such facts as would be admissible in evidence”. Tex.R. Civ.P. 166-A(e). The averment that Manuel Gomez had Juliéta’s authority to contract for repairs was a legal conclusion, and the affidavit fails to show how the president knew that Manuel was Julieta’s husband. See Box v. Bates, 162 Tex. 184, 346 S.W.2d 317 (1961).

However, rendition of judgment for the Bank conflicts with this Court’s decision in Tigner v. First Nat'l Bank of Angleton, 153 Tex. 69, 264 S.W.2d 85 (1954). Tigner, like the instant case, involved a dispute between a party asserting a contractual lien and a party asserting a statutory lien. Both parties moved for summary judgment. The trial court granted the motion of the party claiming the statutory lien, finding the lien established by proof and entitled to priority. The court of civil appeals reversed for failure to establish the statutory lien, and rendered, finding that only the contractual lien was established by summary judgment proof. This Court reversed both the courts below, stating:

When both parties move for a summary judgment, the burden is upon each to prove clearly his right thereto, and neither party can prevail because of the failure of the other to discharge his burden.

Id. at 74, 264 S.W.2d at 87. While the statutory lien was not established as a matter of law, its existence vel non was held to constitute an issue of fact precluding entry of summary judgment. In the instant case, while the president’s affidavit was insufficient to support the trial court’s judgment, it was sufficient to show that there existed a material issue of fact as to the Bank’s right of recovery by virtue of a purchase money security interest. The court of civil appeals’ rendition of judgment for the Bank constituted error.

Pursuant to Texas Rule of Civil Procedure 483, we grant writ of error and, without hearing oral argument, reverse the judgment of the court of civil appeals. The cause is remanded to the trial court for further consideration consistent with this opinion. The parties are to share equally the costs in this Court.

      . Julieta Gomez failed to answer or otherwise defend, and the district court entered summary judgment in the Bank’s favor against her. We are not concerned with this aspect of the case in this appeal.

      . The record shows an appropriate notation upon the vehicle certificate of title. See Tex. Rev.Civ.Stat.Ann. art. 6687-1, § 41 (Pamph.Supp.1975-76); Tex.Bus. & Comm.Code Ann. § 9.302(c)(2) (Supp. 1976-77).

      . See Tex.Rev.Civ.Stat.Ann. art. 5503 (Supp. 1976-77).


author: ODOM, Judge.

text:
    Larry Bernard MITCHELL, Appellant, v. The STATE of Texas, Appellee.
    No. 51833.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1977.
    Kerry P. Fitzgerald and Thomas W. Pauken, Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell D. Templeton and Richard G. Worthy, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

By per curiam opinion this cause was dismissed for lack of a timely sentence. A proper sentence has been entered and notice of appeal given. The appeal is ordered reinstated on the docket and will now be considered on the merits.

Appellant was convicted for aggravated rape. Y.T.C.A., Penal Code Sec. 21.03. Punishment was assessed at fifty years.

In his third ground of error appellant contends the trial court erred in excluding testimony that the prosecutrix had a reputation of being a common prostitute.

Appellant testified at trial and asserted that the sexual intercourse was consented to by the prosecutrix. He stated that after-wards the prosecutrix threatened to tell his wife if he did not give her some money. After this threat appellant slapped her and she told him he would be sorry. Appellant’s testimony, the truth or credibility of which is not a matter for appellate consideration, raised the issue of consent.

In Burton v. State, Tex.Cr.App., 471 S.W.2d 817, it was stated:

“When the consent of a prosecutrix becomes an issue in a rape case, her reputation for unehastity may be shown

In Campbell v. State, 147 Tex.Cr.R. 192, 179 S.W.2d 547, a prosecution for rape by force, the defendant took the stand and raised the issue of consent. On appeal the conviction was reversed, the Court stating:

“. . .it was error not to allow the appellant to prove, if he could do so, the general reputation of prosecutrix as a common prostitute as affecting the matter of her consent or lack thereof to the admitted carnal act, and for that reason this judgment is reversed and the cause remanded.”

On motion for rehearing the following additional statement was made in response to the State’s assertion that the error was not reversible:

“It must be remembered that appellant’s sole and only defense was that the prosecutrix consented to the act of intercourse for pay, and that her outcry was prompted, not by the fact that she had been assaulted, but by reason of appellant’s failure to pay her more money. Under the authority of Graham v. State, 125 Tex.Cr.R. 210, 67 S.W.2d 296, the proffered testimony was material upon this defensive theory.” 179 S.W.2d 550.

The State in its brief does not take issue with the admissibility in this case of evidence of the general reputation of prose-cutrix as a common prostitute. The State instead contends that Johnny Torren, the witness by whom such testimony was to be given, was not qualified to give such testimony. The State relies upon Broussard v. State, 134 Tex.Cr.R. 1, 114 S.W.2d 248, for the proposition that a witness who has never heard any person say that one’s reputation is bad is not qualified to speak. The witness Torren testified upon cross-examination by the State (out of the presence of the jury) as follows:

“Q. Okay, and as to your statement just then that you know of her reputation as being a common prostitute, upon what is that based; is that based upon that one incident there at Church’s?
“A. And hearsay.
“Q. And hearsay?
“A. Yes. '
“Q. Have you ever heard of her taking money for anybody else?
“A. No.
“Q. Well, that’s what a prostitute is, you know, somebody that takes money; are you saying that you are basing that opinion really just upon that once [sic] incident there at Church’s Fried Chicken?
“A. Well, there are other people that told me.
* * * * ⅜ *
“Q. . . . Who are the people, which people have told you things that formed the basis of your opinion that she has a bad reputation for being chaste or unchaste?
“A. People in a bar, you know, I don’t know their names. Leslie is one of them.
“Q. Who else?
“A. Well, I don’t know their names.
“Q. . Which bar?
“A. At the Kofson down near the mini bar (phonetic).
“Q. They just talk about her frequently?
“A. Not frequently, I mean unless it’s together.
“Q. Is Leslie the only person you can name?
“A. Yeah.”

Contrary to the State’s assertions, this testimony demonstrates that' the witness was qualified to give the testimony on reputation of the prosecutrix that was excluded. In Sanchez v. State, Tex.Cr.App., 398 S.W.2d 117, 120, the Court stated, “The opinion as to one’s general reputation in a community is, by necessity, based upon hearsay.” In Henry v. State, Tex.Cr.App., 433 S.W.2d 430, 433, it was stated, “Testimony as to reputation is customarily based on what the witness has heard others say.” Other eases discussing the relation between reputation testimony and hearsay include Mitchell v. State, Tex.Cr.App., 524 S.W.2d 510, and Brown v. State, Tex.Cr.App., 477 S.W.2d 617.

The excluded evidence was central to appellant’s defense, and the error in excluding it requires reversal.

The judgment is reversed and the cause remanded.


author: DOUGLAS, Judge.

text:
    Fidel DELGADO, Appellant, v. The STATE of Texas, Appellee.
    No. 52298.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1977.
    Toby Goldsmith, Fort Worth, on appeal only, for appellant.
    Tim C. Curry, Dist. Atty. and Marvin L. Collins, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for murder. Punishment was assessed by the jury at twenty-five years. Appellant contends that the court erred in admitting evidence that one of the alleged killers, several days after the homicide at the funeral home, punched an eye of the deceased back into his head, and that the court erred in admitting testimony that appellant and the co-indictees refused to sign the magistrate’s warning. We reverse upon the first contention.

The sufficiency of the evidence is not challenged. The offense occurred on June 16, 1974, between 10:00 and 10:30 p. m. Earlier that evening, Danny Salazar and the deceased, David Solis, had a fist-fight at the home of Jasper Galdiano’s father. The fight was precipitated by an obscene gesture made by Solis. Afterwards, Solis apologized and told Danny that he hated his brother, Joe Salazar. Danny responded that he and his brothers would “get” Solis.

Later, Solis, his family and several friends went to the nearby home of Jasper Galdiano which was across the street from the residence of Danny Salazar.

At approximately 10:00 p. m., some children playing in Galdiano’s front yard ran inside and said that several men had arrived with guns. The men had emerged from two automobiles, one of which was driven by Danny Salazar. The other was driven by appellant, who was accompanied by Joe Salazar, Edward Salazar and George Smith.

Jimmy Lozano and Solis came out of the Galdiano house to determine what was happening. As they walked toward appellant and his friends, shooting broke out. Solis suffered a fatal gunshot wound to the head. Appellant and his four companions left immediately.

Edward Salazar and George Smith both testified that they had followed Danny Salazar to his house to protect him from Solis. They further testified they were unaware that appellant had a shotgun and that Solis precipitated the violence by shooting at them with a pistol.

Appellant testified that he went to Danny’s home to help protect him. He further testified that he fired the shotgun three times in self-defense after both Lozano and Solis shot at him.

Appellant was related to the Salazars by marriage. Likewise, the deceased was related to the Alcalas by marriage. An intense hatred existed between the two families as the result of Earnest Alcala, Jr.’s murder by David Perez two years earlier. Manuel and Joe Salazar had been present at that murder but refused to testify against Perez.

Danny and Joe!Salazar were arrested and released on bond on June 17, 1974. Appellant was arrested and released on bond on June 18. He was tried first.

On June 19, three days after the murder, Joe Salazar and two other unidentified males visited the deceased’s body while it lay in state at a Fort Worth funeral home and one or more of the men pushed the eye back into the head. Appellant was not present at the incident.

Appellant contends the court erroneously admitted evidencé of the act involving Joe Salazar at the funeral home. He argues that the act was not committed during the conspiracy to murder and that it occurred after the conspiracy was completed.

The State contends that appellant’s objections to the challenged testimony were insufficient to present the matter for review. The State called Florence Rodriquez, the deceased’s sister, to develop the funeral home incident. Appellant objected as follows:

“MR. SHANNON: (Defense Counsel) Now Your Honor, we are going to object to this. It’s immaterial, it’s inflammatory, and I think I know what they are leading up to; it has no connection whatsoever with the defendant here, any activity on his part whatsoever.”

When the judge indicated that he would sustain the objection, the prosecutor stated:

“Your Honor,; we plan to connect this up to the defendant, as an act of co-conspirators, subsequent to the murder.”

The challenged testimony was then developed out of the presence of the jury and the objection was renewed.

The objections sufficiently apprised the court of the nature of his challenge to the admission of the evidence.

This testimony elicited by the State did not connect appellant to the incident at the funeral parlor. His answer that he did not know to the question, “It happened after somebody had went into Shannons Funeral Parlor and stuck their finger in his eye while he laid in the casket, didn’t it?” did not constitute the same testimony that had been introduced over objection and did not constitute a waiver. Questions or statements of counsel not under oath do not constitute evidence.

The State proved that appellant and others acted together in murdering Solis. Such proof was by itself sufficient to establish a conspiracy. Morgan v. State, 519 S.W.2d 449 (Tex.Cr.App.1975). Declarations or acts of one conspirator may be used against another conspirator if the declaration or act occurred during the course of the conspiracy charged. Lapp v. State, 519 S.W.2d 443 (Tex.Cr.App.1975). See Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974).

In essence, “a conspiracy is a partnership in crime.” Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1949). An act or statement after the completion of a conspiracy is inadmissible. Colunga v. State, 527 S.W.2d 285 (Tex.Cr.App.1975). See Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949).

In the instant case, Joe Salazar was not acting during the conspiracy to commit murder. Since his actions at the funeral home occurred three days after the objective of the conspiracy was achieved, the “partnership in crime” was not then his purpose.

The record is devoid of any hint that the scope of the conspiracy was broader than the murder of David Solis. The commission of the murder completed the object of the conspiracy.

The State’s reliance on Salazar v. State, 397 S.W.2d 220 (Tex.Cr.App.1966), is misplaced. In Salazar, the defendant threatened to kill the brother of the deceased several months after the murder. We held that the statements were pertinent evidence to show express malice and rebut defendant’s self-defense theory. In the case at bar, appellant was not involved in the funeral home incident. The eye mutilation may be relevant to show Joe Salazar’s malice toward Solis and to rebut his potential self-defense theory. But the act is irrelevant and prejudicial insofar as appellant is concerned because the conspiracy was complete and Salazar acted alone.

Appellant also contends that the trial court erred in admitting evidence that he and two of his co-indictees refused to sign a statement that they had received the Miranda warnings.

This evidence was inadmissible, but since we reverse on the first contention it is not necessary to determine if this amounts to reversible error. It will not likely occur in the event of a new trial.

The judgment is reversed and the cause is remanded.


author: BROWN, Commissioner.

text:
    Alexander Howard RIDDLE and Basden & Walker, Appellants, v. The STATE of Texas, Appellee.
    No. 53224.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1977.

      Russell C. Busby, Amarillo, for appellants.
    Tom A. Curtis, Dist. Atty. and Bruce P. Sadler, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a bond forfeiture judgment in which appellant Alexander Howard Riddle was the principal on the Appearance (Bail) Bond and the bail bond company, Basden & Walker, a partnership, was surety.

The bond was signed by appellant Riddle as principal. In the space for surety the name Basden & Walker is typed and there appears the signature of Tate Walker. It is undisputed that Tate Walker was one of the partners of Basden & Walker, the bonding company. The bonding company filed a general denial as its answer in the forfeiture proceeding. At the bond forfeiture hearing on March 16,1976, it was stipulated that Tate Walker was deceased. It was further stipulated that during his lifetime Tate Walker was a partner in the bonding company of Basden & Walker.

Appellant Basden & Walker, the partnership, contends that it did not execute the bond, but that Tate Walker, deceased, executed the bond individually rather than as the agent and partner of the firm of Bas-den & Walker. The court mentioned that he thought the issue was probably moot, since in a prior suit in which there were several bonds mentioned the issue now raised was settled, but the court could not recall if the present bond was mentioned at that time. However, he found and held that Tate Walker signed the instant bond as an agent of the appellant Basden & Walker and rendered judgment accordingly.

Initially, it is rioted that the matter attempted to be raised on this appeal by the bonding company is a denial of execution by the bonding company, which is a plea of non est factum. Under Rule 94, Vernon’s Annotated Texas Rules of Civil Procedure, the plea of non est factum is an affirmative defense and is waived unless affirmatively pled in a verified answer. A general denial is insufficient under Rule 94, supra. We hold that the issue now asserted was neither before the trial court nor is it properly before this Court. Glover v. State, 171 Tex.Cr.R. 156, 346 S.W.2d 121.

The judgment is affirmed.

Opinion approved by the Court.


author: MASSEY, Chief Justice.

text:
    Richard A. HARRIS et ux., Appellants, v. Joseph M. LOGUE et al., Appellees.
    No. 17778.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 10, 1976.
    Rehearing Denied Jan. 14, 1977.

      Minor, Jester & Davidge, T. Miller Da-vidge, Jr., Nelson & Lewis, L. A. Nelson, Denton, Tex., for appellants.
    Tim Banks, Jack Gray, John L. Sullivan, Denton, Tex., for appellees.
   OPINION

MASSEY, Chief Justice.

The appeal is from a judgment which vacated a prior default judgment in a class action suit.

Richard A. Harris and his wife, owners of Lots 1 and 2 in Block 1, Roberts Addition in Denton County, Texas, brought an action, under the provisions of T.R.C.P. 42, “Class Actions,” to remove the restrictions theretofore appertaining to the use of their lots against persons by the names of Puller, Ferrill, Young, Callahan, Dawson, Hyder, and Copp, plus Denton Savings Association. These were sued individually and as representatives of the class of owners of property (and Denton Savings as a lienholder and as representative of others) in Roberts Addition. Restrictions had been placed on such lots at time of the 1945 platting and dedication by Mrs. Marion R. Roberts and her husband.

On May 7,1974, Harris and wife obtained a default judgment by such suit. The judgment recited, among other things that “. . . when came Plaintiffs . and announced ready for trial, and the Defendants, although duly served with citation and cited by law to appear herein, came not but wholly made default, except Defendants Copp and Puller, who individually answered herein, but who each wholly failed to appear at said setting, although proper notice of the setting of this cause was given, and the Plaintiffs having announced ready for trial, and having waived trial by jury, all matters of fact, as well as of law, were submitted to the Court, and the Court, having reviewed the pleadings and having heard the evidence and argument of counsel, is of the opinion that Plaintiffs are entitled to recover Judgment as hereinafter provided, and the Court finds that: First . . . . Second, that the owners of the various tracts of the Revised Roberts Addition . . . are so numerous that to bring them all before this Court would be impractical and would produce delay and obstruct the purposes of justice. Third, that the Defendants cited herein constitute true representatives of the class sued herein, said class comprising the owners of the various tracts of the Revised Roberts Addition, . . . . Fifth, that the restrictions as to use, . . . and which covered Lot 1, Block 1 of the Revised Roberts Addition, then (December 3, 1945) the Roberts Addition, were the only restrictions . . .; that such restrictions were expressly rescinded and revoked . . .; that there are therefore no restrictions of record or otherwise . . . . Sixth, that the aforesaid conditions and restrictions . were each placed upon the property when the neighborhood . . . was of a residential character; that the property surrounding the Revised Roberts Addition has become commercial in nature, . that there has been such a change of conditions surrounding the area subject to the restrictions that it is no longer possible to secure in a substantial degree, the benefits sought to be realized through the restrictive covenants . . . . Seventh, that this Court has jurisdiction of the parties and the subject matter of this cause.”

Subsequent language of the default judgment decreed removal of the restrictions from the Harris lots.

On April 1,1975, instrument denominated “Plaintiffs’ Original Petition and Bill of Review” was filed by thirty-four (34) plaintiffs individually, including Joseph M. Lo-gue, all alleging themselves to be owners or lienholders of property in the Roberts Addition, and including Mrs. Marion R. Roberts, who with her deceased husband had originally subdivided Roberts Addition and who had continued to be an owner. Defendants named in the suit included fifteen (15) lien-holders in addition to Denton Savings Association (defendant in the Harrises’ original suit) with the Harrises plus eighteen (18) others, as property owners. Included were the seven (7) persons named in the first paragraph of this opinion as individuals who had been sued by the Harrises in the case in which Mr. and Mrs. Harris had obtained default judgment.

Relief prayed for in the instrument denominated “Plaintiffs’ Original Petition and Bill of Review” was that the judgment by default rendered for the Harrises on May 7, 1974, be annulled, decreed null and void, set aside and held for naught, with restrictions reimposed upon the Harris lots and the Harrises be enjoined from their violation.

Following hearing by the court, without a jury, such relief was granted, with the antecedent default judgment set aside and annulled and with the Harrises permanently enjoined. From this judgment they appealed.

We affirm.

In respect of attacks upon antecedent judgments by new action in which identical parties are present we recently had occasion to examine the nature and propriety of the procedure required under our Rules of Civil Procedure, and in particular T.R.C.P. 329b, “District and County Court Cases”. We concluded that whether the action be one of direct attack upon a prior judgment because the prior judgment was demonstrably void “on the face of the record” or, alternatively, that it be a direct attack where it was necessary to show by evidence that the prior judgment was void for some reason not apparent “on the face of the record”; or whether it be a case of truly equitable Bill of Review — (where it must be shown that plaintiff show (1) meritorious defense to the cause of action in the case in which prior judgment had been rendered against him, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own) — the form of action would be the same. The numbered requirements are those prescribed by Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950). This Court, in Sessions v. Price Drilling Company, 337 S.W.2d 368 (Tex.Civ.App., Fort Worth, 1960, writ ref., n. r. e.) noticed other cases indicating that the plaintiff in such a case must show additionally that the matters complained of could not have been presented by an appeal and diligence in filing and prosecuting the Bill of Review action. To be noticed is that all dealt with grounds appropriate to true equity cases which were distinguishable from cases not founded in equity.

The form of action intended by Rule 329b was that in all cases (1) there must be a new suit, (2) in a newly filed case, (3) in the same court, (4) involving the same parties. By this method the “body” of the case in which the former judgment was rendered is brought before the court for a proper new trial if, and in the event the former judgment be set aside, as part of the entire proceedings. By complying with the rule there need not be delay in trial anew of such case should the court vacate the prior judgment. See Deen v. Deen, 530 S.W.2d 913 (Tex.Civ.App., Fort Worth, 1975, no writ hist.).

In the instant case we have occasion for examination into the propriety of the judgment by test of whether by evidence there had been established facts which demonstrated that the antecedent default judgment was proper to have been declared void, as for want of due process or jurisdiction over necessary parties. We have concluded that by this test it was established and that the judgment setting aside the prior default judgment was compelled.

And, assuming error in the conclusions set out in the paragraph preceding, we would have occasion for examination into the propriety of the judgment by tests appropriate to the true equitable Bill of Review case by the rules already noticed, such being those established in Alexander v. Hagedorn, supra. We have examined the record in view of this possibility, and by such tests have concluded that to set aside judgment in the prior case was not erroneous, being supported by pleading and evidence under equitable principles.

If it be proper under either of the foregoing tests for the trial court to have determined that the antecedent default judgment should be set aside, as in our holding, the resultant situation presented to the trial court was a ease where all parties were present and ready (or assumed to be) to proceed to trial anew of the case made by the pleadings in the default judgment case. The defendants (whose plaintiffs’ judgment in the prior case was set aside) were obliged to go forward to try anew the case in which they were (or had been) the plaintiffs, to introduce evidence under their pleadings and have the same submitted upon plea that the restrictions should be removed from their lots.

Here there is no question but that the Harrises did not discharge the burden incumbent upon them if the trial court’s decision to set aside their former default judgment was not error. They introduced no evidence to support their cause of action for removal of the restrictions, or if in this holding we err, certainly we are correct in stating that their evidence did no more than create fact issues. In that event our holding is that the court, as trier of the facts in the case, was entitled to rule against them as it did, the finding being one not proper to be disturbed as contrary to the greater weight and preponderance of the whole of the evidence in the record.

■ By stating the foregoing the case is presented as one in which we need only write upon propriety of the trial court’s action in setting aside the prior default judgment. If such action was proper for any reason, or in any event not erroneous, the judgment would be one for affirmance.

The original suit of the Harrises, that action in which they obtained the default judgment, was one for which there was provision by T.R.C.P. 42, “Class Actions,” which reads:

“If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is

“(1) . . .

“(2) several, and the object of the action is the adjudication of claims which do or may affect specific property involved in the action; or

“(3) . . . .” (Emphasis supplied.)

Immediately apparent is that in a suit against a class of persons, the members of the class named individually and brought in as a party in that capacity and also as representative of others of the same class must be persons whose interest in the subject matter is such that they are truly representative of the others in the same class; and that their presence “fairly insures” adequate representation of all who are intended to be defendants bound by judgment in the case. Furthermore, it would appear obvious that the intent of the Rule is that when there has been failure of the individuals so named to appear and put the plaintiff to trial on the issues presented by his cause of action, or to resist the plaintiff’s claim in some way, their having been named as representative defendants probably did not “fairly insure” adequate representation of all whose interest should have been identical, or their having been named as individual defendants did not “fairly insure” that their interest in the subject matter was identical to that of other members of the class. It would be possible to rebut that probability by evidence, but it seems to us that until rebutted the. legal as well as logical inference would persist that there was no adequate representation of the class of persons entitled thereto.

In a suit to remove the restrictions from lot or lots within a subdivision it would always be apparent that a person or persons who had originally subdivided land and platted and dedicated the same and had prescribed restrictive covenants to apply thereto, and who had retained a property interest by way of specific provision therefor either because of continued ownership of a part of such subdivided land or contractually by provision in the covenants, would probably not fall within the same class of persons as subsequent purchasers. Of all those who owned land so subdivided those who imposed the restrictions would have the greatest interest in their preservation; and, in the absence of affirmative proof to the contrary, the presumption would obtain that they were not members of the same classification as other property owners who had made subsequent purchases. Such person or persons are necessary parties in order that there might be “due process of law” in suits, including class actions, to remove the restrictions which they had prescribed. To render judgment removing restrictions without their having been made parties would be to render the judgment in a case where there existed a want of necessary parties. Knioum v. Slattery, 239 S.W.2d 865, 868 (Tex.Civ.App., San Antonio, 1951, error ref.).

In the instant case Mrs. Marion R. Roberts was one of those who sought to have the earlier default judgment set aside. On trial the evidence showed that she could not have been among the class of persons who might have been represented by those who were named defendants in the default judgment case. Of course, such persons who had been named as defendants in the default judgment case had not actually appeared. They had neither represented themselves or any member of the class which could have been represented by them in a resistance to the Harris judgment. That class did not receive any representation. Because of the absence of adequate representation to other members of whatever might have been a proper class, there was an absence of necessary and indispensable parties. Adams v. Owens, 519 S.W.2d 260 (Tex.Civ.App., Beaumont, 1975, writ ref., n. r. e.). This would have application to all who should have received virtual representation, and not merely Mrs. Roberts, even upon an assumption that she was of the same class.

In Meyer v. Wichita County Water Imp. Dists. Nos. 1 and 2, 265 S.W.2d 660 (Tex.Civ.App., Fort Worth, 1954, writ ref., n. r. e.) this Court had occasion to examine the question of whether there had been provided, by the parties present in a class action, adequate and “virtual representation” of others not individually made parties but contended to have become bound as members of a class represented. We wrote: “Generally, only parties and privies are bound by judgments. There is a seeming exception to this rule which recognizes that a person may be bound by a judgment under the theory of virtual representation. However, for the exception to apply, as in the case of a class suit, such a person is to be bound only where the representative parties actually participating in the suit as such are either prosecuting or defending rights or interests so substantially identical to those of such person as insure his adequate representation therein.”

By the pleading and evidence there was not error in the trial court’s determination that the prior default judgment should be set aside for want of necessary parties and for want of any virtual representation of parties, necessary or otherwise.

To this point we have written upon the appeal with the case treated as one at law. Aside therefrom, upon consideration of the case as one in equity and the case as one to be tested by the rules pertaining to equitable Bills of Review, there was no error in the court’s action setting aside the prior default judgment. Some of the plaintiffs in the Bill of Review case were shown to have had no notice of the default judgment until some time later, by permissible inference even the time for appeal. There could have been no fault or negligence by these in failing to present a defense, whereby there would be satisfaction of a requisite that they show “fraud, accident or wrongful act of the opposite party” which prevented their defense to the suit. Furthermore, the existence of a meritorious defense to the Harrises’ attempt to remove the restrictions lay in the restrictions themselves, coupled with the proven ability to counter and contradict by available evidence the allegations of the Harrises in support of those grounds upon which they asserted the right to have the conceded restrictions judicially removed.

The delay in filing the Bill of Review case availed no right or benefit to the Harrises not otherwise possessed by the plaintiffs in the Bill of Review case. We take occasion to mention that laches was not pled by them under T.R.C.P. 94, “Affirmative Defenses,” though it would have made no difference. As previously noticed the question is narrowed to that upon propriety of setting aside the prior default judgment. As addressed to that question the doctrine of laches would not have any application to any period after expiration of time for filing a mbtion for new trial and many of the plaintiffs in the case were shown to have never been informed of the default judgment in time to file a motion for new trial. 22 Tex.Jur.2d, p. 569, “Equity”, Sec. 28, “Bills of review”. Anyway, even assuming the laches doctrine applicable to the case as a true equitable Bill of Review it would not be applicable to tests applicable thereto when considered as a law case in which the attack made on the default judgment was on the “due process of law” theory, and we hold it proper that the trial court declared it void for that reason.

We consider our discussion to be one covering all points of error presented on appeal. In any event we have severally considered and overrule all points of error.

Judgment is affirmed.


author: KLINGEMAN, Justice.

text:
    Mary A. STUTTS, Appellant, v. Florine STOVALL et al., Appellees.
    No. 15640.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 8, 1976.
    Rehearing Denied Jan. 12, 1977.

      Don McManus, James A. Rindfuss, San Antonio, for appellant.
    Remy, Schiller & Bayern, San Antonio, for appellees.
   KLINGEMAN, Justice.

This case involves a handwritten will of J. A. Stutts. Appellant, Mary A. Stutts, the surviving wife of J. A. Stutts, deceased, appeals from a judgment of the Probate Court of Bexar County decreeing: (a) that she was put to an election to take or not take under the will of J. A. Stutts; (b) that by making an election to take under such will she is precluded from recovering reimbursement for her interest in community funds used in improving the separate property of the testator, J. A. Stutts, and for her interest in community funds used in paying on the separate debts and obligations of testator, J. A. Stutts; and (c) that she must refund the statutory widow’s allowance paid to her.

The will of J. A. Stutts is wholly in his own handwriting, and the pertinent portion here involved reads as follows:

I do hereby give to my wife (Mary A. Stutts) my property located 115-117 W Locust St and 127-129 East Norwood Court, San Antonio Texas — My Insurance, Aetna Life Insurance Co also Siem-erling Lodge # 32, Son’s of Herman and one Hundred thousand dollars out of Sale of my farm of 305 8/io Acres in Bexar County, Texas — all cars and impliments Land to be sold and inheritance tax is paid and balance divided as follows [Here follows list of devisees who are nieces and nephews, and are the appellees herein.]

J. A. Stutts died on January 30,1973, and his will was admitted to probate in Bexar County, Texas, and the Bexar County National Bank appointed Administrator with the Will Annexed. Shortly thereafter, the administrator made application for a widow’s allowance under the applicable statutory provisions, and the Probate Court approved such application, and the administrator was authorized and directed to pay out of the funds of such estate the sum of $4,800.00 in monthly installments of $400.00 each. The cars, trucks, and farm implements were sold and the proceeds from this sale distributed to Mary A. Stutts. The 305.8-acre tract was sold under court order by the administrator for the sum of $250,-000.00 cash.

Appellant thereafter filed an action in the Probate Court seeking a reimbursement in the sum of $20,094.78 for her one-half interest in community funds allegedly used in paying indebtedness on the 305.8-acre tract and on the West Locust St. property and East Norwood Court property; and also the sum of $31,250.00 as reimbursement for her one-half interest in community funds used in improving the 305.8-acre tract. In her petition, she alleges, and it appears undisputed, that at the time of appellant’s marriage to J. A. Stutts in 1953, Mr. Stutts owned as his separate property the 305.8-acre tract, the property located on West Locust St., and the property located at East Norwood Court. She alleges that, during the marriage, improvements in the amount of $69,800.00 were made on the 305.8-acre tract, including four dwelling houses, barn, sheds, and other buildings; that all such improvements enhanced the value of the 305.8-acre tract by at least the sum of $62,500.00.

During the course of the trial, the trial court instructed appellant, which instruction is also contained in the judgment, that she could not take the bequests given her under the will of Mr. Stutts and at the same time make claims for reimbursement of one-half of the community funds of Mr. Stutts and herself that was used in improving his separate property; and for reimbursement of community funds that were used in paying the debts owed by Mr. Stutts on the 305.8-acre tract and the San Antonio property; and the widow’s allowance. She was further instructed that she could not take under the will and also claim her statutory allowance and rights of reimbursement.

The judgment recites that appellant, after advising with her counsel, stated in open court she had elected to take the bequests given her under the will of J. A. Stutts rather than make her claim for reimbursements and claim for a statutory widow’s allowance. The trial court overruled a plea in abatement filed by appellee and also held that appellant was entitled to the proceeds of the sale of the cars and farm implements.

By two points of error, appellant urges that the trial court erred (a) in ruling that appellant was put to an election to take the bequests given under the will or in lieu thereof to not take such bequests and make her claim for reimbursements hereinabove described; (b) in ruling that appellant was put to an election under the will to take the bequests under the will, or in lieu thereof to not take such bequests and make her claim for widow’s allowance.

By cross-points, appellees assert that the trial court erred (a) in overruling the plea in abatement filed by appellees; (b) in holding that appellant is entitled to receive the cars and farm implements.

Appellant’s basic contentions with regard to election may be summarized as follows: (a) the will of J. A. Stutts did not attempt to dispose of any of her property, and that she was not presented with an election; (b) she may take what the will gives her and also have and receive her claim or charge for reimbursement, and her statutory widow’s allowance.

Appellees assert that (a) appellant was put to an election as to whether to take the bequests under the will or to make her claim against the estate for such reimbursements and statutory allowances; (b) appellant had an equitable beneficial interest in 305.8-acres for improvements placed on the property with community funds; (c) Mr. Stutts’ will disposed of property in which appellant had an equitable beneficial interest, and by virtue of our laws, appellant had certain legal rights or interests in the property and other statutory rights; (d) it was the clear intention of Mr. Stutts to dispose of appellant’s equitable beneficial interests, rights, or claims in the 305.8-acre tract and give her in lieu, thereof a sum of $100,-000.00; (e) having elected to take under the will and making such an election, appellant waived her rights for reimbursement for improvements and debt payments, and for the statutory widow’s allowance.

ELECTION

An election under a will has been defined as an obligation imposed upon a party to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both, the principle being that one shall not take any beneficial interest under a will and at the same time set up any right or claim of his own, even if legal and well founded, which would defeat or in any way prevent the full effect and operation of every part of the will. The principle underlying the doctrine of election is not statutory, but is purely equitable, and was originally derived from the civil law, although in some states there are statutes declaratory of, or applying, the equitable principle to particular cases. The doctrine of election is generally regarded as being founded on the intention of the testator. 69 C.J. § 2330, pp. 1089-1090. (Quoted with approval in Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620, 624 (1935).)

Both sides cite and rely on Dakan v. Dakan, supra. This case has been frequently cited and followed in Texas cases. In Dakan, the decedent, G. W. Dakan, owned Lot No. 7, Block A-2, prior to his marriage, which property was his separate property. The Dakans owned other property and Lot No. 7 was not the homestead. Mrs. Dakan, the widow, had contributed out of her separate and community estate certain funds for improvements to said Lot No. 7. Mr. Dakan’s will provided that the executor pay Mrs. Dakan the sum of $100.00 per month for and during her life and that Mrs. Dakan also have the free use of the homeplace. He willed and bequeathed Lot No. 7 to his four children, but provided that out of the rentals from a building on Lot No. 7 Mrs. Dakan be paid the aforesaid of $100.00 per month. Mrs. Dakan brought an action seeking reimbursement for the improvements made to Mr. Dakan’s separate property.

The Court, in discussing the question of election, said:

Did G. W. Dakan undertake to will property not owned by him, and which required an election on the part of his wife to take under his will or renounce the will and demand her rights under the law?

In answering said question, the Court stated:

The testator used plain and unequivocal language when he said, T hereby give and bequeath Lot No. 7, Block A-2, situated in the town of Eastland, Texas, together with all improvements thereon situated, to my four children.’ There can be no doubt that the testator intended, in the language used, to treat the lot and the improvements thereon as his own property, and clearly devised the entire property, regardless of any right or claim his wife might have therein.

The Court held that if Mrs. Dakan accepted under the will, she waived all claims for reimbursement for improvements placed on the lot.

Assuming, for the purpose of this opinion, that the amount appellant alleges in her petition which she is entitled to for reimbursement for community funds used in making improvements on separate property and paying on separate debts of the decedent ($69,800.00 for improvements and $40,-189.56 for debts) is correct, it is seen that substantial improvements have been made out of the community funds on the 305.8-acre tract, and substantial amounts paid out of community funds on separate obligations of the testator. Under such circumstances, appellant would have had a valid legal claim for her share of community funds used for such purposes, whether you call it a claim for reimbursement, legal charge, equitable charge, or what.

Under the will, she received substantial benefits, including the sum of $100,000.00, two houses in San Antonio, cars, and farm implements.

An excellent discussion of the doctrine of election is found in Miller v. Miller, 149 Tex. 543, 235 S.W.2d 624 (1951). In Miller, the question before the Supreme Court was whether a widow could take the property given her by the testator’s will and at the same time have the benefits of homestead, widow’s allowance, and use of exempt personalty not mentioned in the will, but provided for by the State constitution and Texas statutes.

Miller’s will devised all of his property to his wife and seven children, share and share alike.

The Supreme Court stated that under the law the widow had a right to use and occupy 200 acres out of 233 acres, which was the separate property of testator, as her homestead so long as she lived, and that under the will, she received a fee simple title to an undivided ⅛ of the whole 233 acres, with each of the seven children each receiving a fee simple title to an undivided ⅛ of said land. The Court pointed out that under the applicable laws the widow was also entitled to all the exempt property to be used and disposed of by her for her support and maintenance, while under the will all property was devised to her and her seven children, share and share alike. The Court said that a mere statement of the two rights shows the inconsistency, and held that she was put to an election by the will to choose what property she would take, stating:

Clearly, there is also an inconsistency here between the rights of the widow under the law and the terms of the will.
Therefore, it is beyond question that she is put to an election by this will to choose which property she will take — that given by law or that given by the will.

See also Lindsley v. Lindsley, 139 Tex. 512, 163 S.W.2d 633 (1942).

It appears clear from the will that Stutts intended to devise the 305.8-acre tract to his nieces and nephews, irrespective of what right or claim his wife might have thereon. In compensation therefor, he gave her the sum of $100,000.00 and other property. The benefits given the wife in the will are inconsistent with the rights allowed by law. She was therefore put to an election of accepting or not accepting thereunder. By accepting under the will she waived all claims for reimbursement for improvements placed on the 305.8-acre tract and for payment made on separate debts of decedent.

The trial court correctly held that appellant was put to an election to take under the will or not to take under the will of J. A. Stutts, and that she could not take under the will, accept the bequests and benefits thereof, and also claim her right of reimbursement.

WIDOW’S ALLOWANCE

Appellant also complains that the trial court erred in ordering her to refund the full amount of the widow’s allowance previously paid to her. Appellees assert that we should not consider this point because appellant did not appeal from that portion of the judgment of the trial court that required the appellant to refund to the estate of the testator the full amount of the widow’s allowance previously paid to her.

An examination of the judgment here under attack shows that appellant complains and excepts to other portions of the judgment not here involved, but that the judgment also contains this provision:

To that portion of the ruling of the Court that if MARY A. STUTTS elects to take under the will, that she is precluded from taking the widow’s allowance, both the BEXAR COUNTY NATIONAL BANK, Administrator with Will Annexed of the Estate of James A. Stutts, Deceased, and MARY A. STUTTS duly excepted and gave notice of appeal to the Fourth Court of Civil Appeals sitting in San Antonio, Texas.

We found no merit to appellees’ contention in this regard and will consider such point.

The pertinent provisions of the Tex.Prob. Code Ann. (1956), here involved, may be summarized as follows:

§ 286 provides that immediately after the inventory, appraisement, and lists of claims have been approved, the court shall fix a family allowance for the support of the widow and minor children of the deceased.

§ 287 provides that such allowance shall be of an amount sufficient to the maintenance of such widow and minor children for one year from the time of the death of testator or intestate and the allowance shall be fixed with regard to the facts or circumstances then existing and those anticipated to exist during the first year after death.

§ 288 provides that no such allowance shall be made for the widow when she has property adequate for her maintenance.

On April 25, 1973 the Court, under the applicable provisions of the Probate Code, authorized and directed the administrator to pay to appellant the sum of $4,800.00, finding in such order that the widow had no separate property, or property in her own right, adequate to her maintenance, and that such allowance should be fixed and ordered for her use and benefit. This was not an advancement, but an absolute grant of so much money. No objection was made to such order and no appeal taken. The order directing that she refund to the administrator the full amount of the widow’s allowance previously paid is found in the judgment dated February 27, 1976, almost three years after the court’s order granting such widow’s allowance. We find nothing in the Probate Code that authorizes this type of order.

Under the record, the Court erred in ordering that the widow reimburse and return to the administrator the full amount of the widow’s allowance previously paid.

CROSS-POINTS

By one cross-point, appellees assert that the trial court erred in overruling the plea in abatement filed by appellee. Appellees state in their brief that in the event this case is affirmed and the point that Mrs. Stutts was put to an election either to take under the will or to assert her claim for reimbursement are sustained, this cross-point becomes immaterial. We have heretofore held that Mrs. Stutts was put to an election either to take under the will or assert her claims for reimbursement and we will not, therefore, consider this cross-point.

By another cross-point, appellees urge that the trial court erred in holding that appellant is entitled to the cars and farm implements.

It is to be recalled that the will involved is a handwritten will of the testator and is certainly not a work of art, and it is obvious there are grammatical and punctuational errors therein. We have concluded, however, from an examination of the entire will, that a reasonable construction of the will is that the car and farm implements were devised to appellant and the trial court did not err in so holding.

The judgment is reformed so as to eliminate therefrom that portion thereof that orders Mary A. Stutts to refund to the Bexar County National Bank, Administrator with the Will Annexed, the full amount of widow’s allowance previously paid. In all other respects the judgment is affirmed. As so reformed the judgment is affirmed.

Costs of this appeal are taxed one-half against appellant and one-half against ap-pellees.

      . This case was decided prior to the adoption of the Probate Code, but the applicable provisions of the then statutes, with regard to the widow’s allowances, were basically similar to those in the Probate Code.

      . Appellant asserts that she is not only entitled to the $100,000.00 devised to her under the will, together with the other property advised to her, but is also, entitled to a reimbursement in the sum of $51,344.78.

      . In Pace v. Eoff, 48 S.W.2d 956 (Tex.Com.App. 1932, opinion adopted), the Court said: “So we conclude that the phrase ‘separate property,’ as used in article 3478 [now § 288 of the Probate Code], does not mean the surviving wife’s interest in the community property of herself and deceased husband, so as to bar her from the right to an allowance for the first year’s support out of the community estate of herself and husband, * * * * In other words, that which is allowed by the probate court for the support of the widow and minor children of the deceased is an absolute grant of so much money . . and does not mean an advancement.”

      . “The trial court erred in overruling the plea in abatement filed by the Appellees. Mary A. Stutts, the Appellant, filed in the probate court an action to recover $20,094.78 and $31,250 without having first filed her claims with the Administrator With Will Annexed as required by Section 301 of the Probate Code. Such claims are for money damages as is provided for by Section 314 of the Probate Code. And for further reason, the Administrator With Will Annexed had neither accepted nor refused such claim prior to the time the action was instituted in the Probate Court.”

      .In any event, see Massie v. De Shields, 62 S.W.2d 322 (Tex.Civ.App.—Dallas 1933, writ ref’d); 18 T.J.2d, Decedents’ Estates § 400.


author: COLEMAN, Chief Justice.

text:
    COUCH MORTGAGE COMPANY, Appellant, v. James L. ROBERTS, Appellee.
    No. 16763.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 9, 1976.
    Rehearing Denied Jan. 6, 1977.

      Carl, Lee & Fisher, Robert H. Fisher, Houston, for appellant.
    E. W. Newman, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from an order overruling a motion to set aside the appointment of a receiver. The order entered by the trial court will be affirmed.

This action was initiated by a minority stockholder. He sought the appointment of a receiver for Homefinders Real Estate, Inc. for the purpose of winding up its affairs. After notice to the corporation and a hearing the court appointed Jon Hughes receiver for the corporation.

0. Dean Couch, Jr., doing business as Couch Mortgage Company, was the owner of certain notes secured by mortgages on certain properties owned by the corporation. Couch Mortgage was informed of the action of the court in appointing the receiver on May 25,1976, and the next day filed a motion to set aside the order. The motion to set aside was heard by the court on June 1, 1976, and an order was entered overruling the motion. An appeal was perfected in this court within twenty days from the date the order appointing the receiver was entered.

Homefinders Real Estate, Inc. was engaged in the business of buying mortgaged real estate which it resold on a contract for deed. Homefinders would make the payments on the notes out of the installment payments made by the purchasers under the contracts for deed. It appears that for several months prior to the institution of this action Homefinders had collected installments from their vendees but had failed to make payments on the notes. As a result Couch Mortgage Company and others were threatening foreclosure on the real estate which Homefinders had sold on contracts for deeds.

Couch Mortgage Company was not a party to this suit at the time the hearing was held and the receiver appointed. In its motion to set aside the receiver Couch Mortgage pointed out that the order entered by the court appointing the receiver recited the necessity for appointment of a receiver under Article 7.05 of the Business Corporation Act and that the Act provides for the appointment of a receiver to rehabilitate the corporation, relief which the minority stockholder did not specifically seek by the petition on the basis of which the receiver was appointed. On June 3, 1976, after the hearing on the motion to set aside, but before the rendition of judgment, the plaintiff with leave of court filed a trial amendment alleging that with the aid of a receiver the corporation could be rehabilitated and also alleging that insolvency was imminent for the corporation if the mortgages on the real estate owned by the corporation were foreclosed. The trial amendment also alleged that the officers of the corporation had abandoned their duties in the operation of the corporation.

The corporation did not appeal from the order appointing the receiver. Couch Mortgage alleges that the order should be set aside because the mandatory provisions of the Texas Business Corporation Act were not complied with in making the appointment. Other points presented by Couch are that the plaintiff offered no evidence of any statutory or equitable grounds for the appointment of a receiver and in the alternative that the evidence was insufficient to establish any right to a receiver.

None of the points requiring a review of the evidence can be sustained. The statement of facts brought up in connection with this appeal is certified to constitute a correct statement of the evidence adduced upon the motion to set aside the order appointing the receiver. There is no statement of the evidence before the court at the hearing as a result of which the receiver was appointed. One witness purported to summarize the testimony which he gave at that hearing. While it is not clear that the testimony of this witness was the only evidence introduced at the hearing, even if this were true such testimony would not constitute a statement of facts which could be used on an appeal from the order appointing the receiver. Rule 377, Texas Rules of Civil Procedure.

When an appellate court is called on to revise a ruling of the trial court, it must do so on the record before that court when the ruling was made. A party to a suit will not be permitted to try his case in the appellate court on a statement of facts that does not accurately reflect the evidence presented in the trial court. Stephens County v. J. N. McCammon, Inc., 122 Tex. 148, 52 S.W.2d 53 (1932).

Where no statement of facts accompanies the record before the court of civil appeals, such court cannot determine questions based upon the sufficiency of the evidence. Guerra v. Guerra, 362 S.W.2d 421 (Tex.Civ.App.—Austin 1962, no writ history).

Rule 695, Texas Rules of Civil Procedure, provides in part that no receiver shall be appointed to take charge of real estate unless notice of the hearing has been given to the adverse party at least three days prior to the hearing. Couch was given no notice of the hearing in this case. Home-finders Real Estate, Inc. and Ronald Staggs, vice president of said corporation, and named defendants in this case were given more than three days’ notice of the hearing on the application for appointment of the receiver. Notice to the defendants in the action constitutes notice to the adverse party as required by the rule. Ripy v. Redwater Lumber Co., 48 Tex.Civ.App. 311, 106 S.W. 474 (1907, no writ).

Moreover, by filing this motion to vacate Couch Mortgage has waived any right which it might have had to receive notice of the hearing. Best Investment Company v. Whirley, 536 S.W.2d 578 (Tex.Civ.App.—Dallas 1976, no writ history); Whitaker Oil Co. v. Ward, 396 S.W.2d 158 (Tex.Civ.App.—Tyler, no writ hist., motion to certify overruled 398 S.W.2d 155); Lacey v. Dayton Rubber Mfg. Co., 270 S.W. 916 (Tex.Civ.App.—San Antonio 1925, writ dism’d).

Couch contends that even as amended, the plaintiff’s petition fails to particularize statutory or equitable grounds upon which an application for receivership can properly be based.

The plaintiff’s petition will be construed as favorably as possible for the pleader. The court will look to the pleader’s intendment and the pleading will be upheld even if some element of a cause of action has not been specifically alleged. Every fact will be supplied that can reasonably be inferred from what is specifically stated. The Rules of Civil Procedure are employed uniformly in all civil cases. Gulf, Colorado & Santa Fe Railway Co. v. Bliss, 368 S.W.2d 594 (Tex.1963).

Applying these rules to the petition filed by the plaintiff in this case, we find the petition to be sufficient to allege a cause of action under Article 7.05 of the Texas Business Corporation Act for the appointment of a receiver to rehabilitate the corporation.

Article 7.05, supra, sets out in detail various matters which must be proven before the district court is authorized to appoint a receiver for the purpose of rehabilitating a corporation. In this case there is a presumption that all of these matters have been found by the trial court in such manner as would support the judgment rendered by the court and that the findings were based on evidence presented to the court at the hearing which was not reported. A cautious attorney would allege all facts which the Act requires that he prove. Nevertheless, a failure to allege certain matters, as for instance that “all other requirements of the law were complied with,” or that “all other remedies available either at law or in equity are inadequate,” would not require the dissolution of the receivership on motion to vacate.

A motion to vacate must be based on some new matter previously unknown to the trial court relating to the propriety of entering the order appointing a receiver or a fundamental error that renders the order void. Whitaker Oil Co. v. Ward, 896 S.W.2d 158 (Tex.Civ.App.—Tyler 1965, no writ hist., motion to certify denied 398 S.W.2d 155).

A judgment not based upon any pleading is void. A judgment based upon a petition which is merely lacking in allegations of fact sufficient to fully state a cause of action is not void. If the petition states the nature of the cause of action determined by the judgment and is of a class over which the court has potential jurisdiction, it invokes the active jurisdiction of the court, and its sufficiency is a matter for determination by the trial judge. In rendering a judgment based upon the petition the trial court has passed upon the sufficiency of the petition and an error in that regard would not render the judgment void. It is not necessary to rely on the trial amendment to sustain this action by the court. Edwards Feed Mill v. Johnson, 158 Tex. 313, 311 S.W.2d 232 (1958); Ex parte Edmonds, 383 S.W.2d 579 (Tex.1964).

The proceedings in the trial court in this case were not void, and in the absence of a statement of facts we cannot determine whether or not as a basis for the motion to vacate Couch Mortgage presented to the trial court a fact previously unknown to it relating to the propriety of entering the order appointing the receiver. The trial court did not err in overruling the motion to vacate.

The order of the trial court from which this appeal is taken is affirmed.