author: HARBISON, Justice.

text:
    CITY OF HARRIMAN et al., Petitioners, v. ROANE COUNTY, Tennessee, et al., Respondents.
    Supreme Court of Tennessee.
    July 25, 1977.

      William A. Newcomb, Harriman, for petitioners.
    Joe H. Walker, Harriman, for respondents.
   OPINION

HARBISON, Justice.

This action was instituted by the City of Harriman, its Board of School Directors and some taxpayers, seeking a declaratory judgment and incidental relief against Roane County and certain of its officials in connection with the distribution of public funds. Also involved was the interpretation of a contract executed between officials of the respective city and county school systems.

The case was tried on oral testimony. The Chancellor resolved the contract issues favorably to the contentions of the plaintiffs, petitioners here, holding the contract to have been cancelled. He also awarded the city schools a proportionate share, based upon average daily attendance, of certain payments received by the county in lieu of property taxes. No appeal has been taken as to either of these aspects of the case.

The Chancellor held that the city school system was not entitled to a division of payments being made by the county representing interest on certain school bonds assumed by the county. He also held that the city system was not entitled to share in proceeds derived from a wholesale beer tax, which proceeds were being allocated by the Quarterly County Court to the annual budget of the county schools. He further concluded that the city could not share in certain county sales tax receipts which were also being allocated to the regular county school budget.

The Court of Appeals affirmed the Chancellor in denying the claims of the city school system to any of these funds. We granted certiorari to give further consideration to the issues.

A. Interest on School Bonds Assumed by the County

Both the pleadings and the testimony in regard to this issue are brief. Prior to 1973 the City of Rockwood operated a separate school system within Roane County. In that year the county purchased the schools and related equipment from the City of Rockwood. It assumed responsibility for the payment of school bonds which had been issued by the city. There is testimony that the county makes semi-annual payments to the city out of the county “debt service fund” so that the city may retire these bonds and pay the interest thereon. This debt service fund is created by a special property tax levied by the county.

According to the pleadings and statement of counsel, the county has either paid or is paying to the City of Harriman a proportionate amount of the principal of these school bonds, although it denies any legal obligation to do so. The petitioners contend, however, that the city is also entitled to receive from the county additional amounts representing the interest and debt service on the bonds.

No authority has been cited by the petitioners in support of this proposition. They basically contend that the city is entitled to an apportionment pursuant to T.C.A. § 49-605, which directs apportionment of all school funds “for current operation and maintenance purposes collected by any county . . . .”

It affirmatively appears from the record that the funds used to retire the Rockwood school bonds are not derived from the county school tax or any other funds allotted to the annual county school budgets. Apparently the bonds are being retired' under a separate county-wide tax, and both interest and principal are being paid out of that levy. It is not shown that the funds used for retirement of these bonds are “for current operation and maintenance purposes”, and we affirm the holding of the courts below that the city is not entitled to a division of the amounts representing interest payments and debt service. The assignments of error pertaining to this issue are overruled.

B. The Wholesale Beer Tax

It is the basic insistence of petitioners that the Quarterly County Court is not authorized by law to apply the proceeds of the wholesale beer tax to the regular county school fund, and that such action on its part is illegal. Neither court below appeared to consider this contention. Without citation of authority, both of them held that the Quarterly County Court could, in its discretion, so allocate these tax proceeds without making any division with the separate city school system.

We are of the opinion that the position of the petitioners is correct, under well-settled authorities in this state, and that the action of the Quarterly County Court is improper. Under the same authorities, since the action taken is unauthorized, the petitioners are not entitled to share in these illegally appropriated funds, and the only relief which can be given is a permanent injunction, restraining such allocation in the future.

T.C.A. § 49-605 provides as follows:

“A. For each school system there shall be levied for current operation and maintenance not more than one school tax for all such grades as may be included in the local school program. Each system shall place in one separate school fund all school revenues for current school operation purposes received from the state, county, and other political subdivisions, if any. ... All school funds for current operation and maintenance purposes collected by any county, [with an exception not here pertinent] shall be apportioned by the county trustee among the county, city and special school districts therein on the basis of the average daily attendance maintained by each, during the current school year.”

There is no question in the present case but that Roane County does levy a property tax for school purposes, and that the amount of this tax is being shared, on an average daily attendance basis, with the school system of the City of Harriman.

The petitioners alleged, however, and for all practical purposes the respondents admitted, that the Quarterly County Court is supplementing the funds used for the operation of county schools with proceeds from the wholesale beer tax and a part of the retail sales tax, for the express and deliberate purpose of keeping the school tax levy as low as possible. Since these special tax receipts are not divided with the city schools, taxpayers and school children residing in the city have been discriminated against, contrary to the provisions of the general education statute set out above.

In the leading case of State ex rel. Davidson County Board of Education v. Pollard, 124 Tenn. 127, 136 S.W. 427 (1911), it was expressly held:

“ . . . [I]t is beyond the power of county courts of this State to take moneys raised for school purposes and appropriate them for other different purposes, or to take moneys raised for purposes other than school purposes and use them for school purposes.” 124 Tenn. at 136, 136 S.W. at 429.

The Court further stated:

“This holding does not mean that that portion of the population of the counties of the State interested especially in the public schools and public school buildings are without remedy. All the law requires is that each fund be kept separate and used for the purpose for which it was collected. The law is simple in its provisions for the raising of funds to run the schools, and all that is required in that regard is that the particular means provided by statutes be pursued. The slipshod method of using just any fund that might be on hand and available for just any purpose that might arise is not authorized by law and cannot be sanctioned by the courts.” Ibid.

This holding has been followed in many later cases. In Maury County v. Whitthorne, 174 Tenn. 384, 126 S.W.2d 304 (1939), the Court held that a Quarterly County Court has no authority to appropriate general funds for any purposes other than those enumerated in what is now T.C.A. § 5-901 or in some other special statute.

In the case of Board of Commissioners v. Obion County, 188 Tenn. 666, 222 S.W.2d 7 (1949), a county had paid a bonus to its county school teachers out of general county funds. Officials of a separate city school system brought suit to obtain an equal amount for city teachers, contending that once general funds had been transferred into the school fund, the city school system was entitled to share on an average daily attendance basis. This Court held that the appropriation made by the Quarterly County Court to the county school teachers was not authorized by statute, and that the illegal nature of the appropriation was not changed by passing the funds into a school account. The Court said:

“The fact that the county court made an unauthorized gift of county funds to the county school teachers, can be no basis for complainants to demand that a court of equity decree a further unauthorized raid on the county treasury for their benefit.” 188 Tenn. at 670-671, 222 S.W.2d at 9.

To the same effect is the case of State ex rel. Baird v. Wilson County, 212 Tenn. 619, 371 S.W.2d 434 (1963). There a Quarterly County Court had appropriated substantial sums from general county funds and used them for elementary school purposes. Special school districts sought to recover a proportionate amount, but the Court held that the initial appropriations of the general funds to the school funds were illegal and unauthorized. It therefore enjoined future transfers of general funds into the school fund, but denied recovery of funds already diverted, since they had not properly become part of the school fund subject to division between the county and the special school districts. See also State ex rel. Cope v. Davidson County, 198 Tenn. 24, 227 S.W.2d 396 (1955), holding unauthorized and illegal a county court appropriation from general funds for “teacher transportation” in the county schools.

We believe that these principles are controlling here, and that the courts below erred in holding that the county could lawfully appropriate proceeds of the wholesale beer tax to school purposes, without specific statutory authorization. The judgments are reversed as to this aspect of the case, and the cause is remanded to the Chancery Court with directions to enter a permanent injunction, restraining respondents from further allocating the beer tax proceeds to the annual county school budget. If additional county officials need to be joined for the purposes of such injunction, appropriate amendments to the pleadings and proper process should be allowed. For the reasons stated in the foregoing authorities, however, petitioners are not entitled to share in any previous beer tax proceeds which have been diverted into the county school funds.

C. Retail Sales Tax Proceeds

A different situation is presented as to retail sales tax proceeds. Under T.C.A. § 67-3052(1), the county is directed to expend one-half of its sales tax proceeds for school purposes, and under T.C.A. § 49-605 these are to be divided with the city school system on an average daily attendance basis. Apparently these statutes have been complied with, and no issue has been made as to this one-half of the county retail sales tax receipts.

The governing body of the county, however, is authorized by T.C.A. § 67-3052(2)(a) to allocate the remainder of county sales tax receipts “to such fund or funds of the county” as it shall direct.

In accordance with these provisions the Quarterly County Court of Roane County has allocated the remaining portion of the county’s share of retail sales tax proceeds to the school fund, to be used in meeting the annual budget for the county schools. This part of the sales tax proceeds has not been divided with the city school system.

We are of the opinion that the contentions of the petitioners that these funds must be shared with the city school system are well taken, and that the courts below were in error in holding otherwise. The provisions of T.C.A. § 49-605 are mandatory. They require that all school funds for current operations and maintenance purposes collected by a county, except those used for pupil transportation, “shall be apportioned by the county trustee among the county, city, and special school districts therein on the basis of the average daily attendance maintained by each, during the current school year.”

In many well-considered cases since the first general education act was passed in Tennessee in 1925, it has been recognized that public education is essentially a state, rather than a county or municipal, function. The general education statutes contemplate a uniform state-wide system of public education.

In one of the leading cases on the subject, Board of Education of the Memphis City Schools v. Shelby County, 207 Tenn. 330, 339 S.W.2d 569 (1960), the general education statutes enacted up to that time were discussed in depth. In that case a private act purporting to authorize a different distribution of funds between the city and county school systems from that provided in what is now T.C.A. § 49-605 was held unconstitutional and potentially disruptive of the uniform system contemplated by the general statutes.

In that case, the Court said:

“The general purpose and plan of the Education Acts passed by the Legislature of Tennessee, beginning with the Act of 1925, referred to hereinabove, was to establish and maintain a uniform system of public education in this State, public education being primarily a State function. The philosophy permeating such general uniform plan, as set out in said General Education Acts, in so far as pertinent to the issues in these causes, provides for a division of all county school funds, with the exception of funds for the transportation of pupils attending the public schools, between the County School System and the School systems operated by municipalities or special school districts, such as the City of Memphis and its Board of Education, within the county, on a proportional basis of the average daily attendance of pupils attending the various schools in a county.” 207 Tenn. at 345, 339 S.W.2d at 576.

Further, the Court said:

“Education of the youth of each county is the primary purpose of our State Educational System, as reflected throughout all of its General Education Acts, and the apportionment of local school funds under the general law on the basis of average daily attendance of pupils in the various schools gives to every school system its proportional and fair share of said funds, so, in a sense, each pupil may be afforded the same opportunity to obtain an education, regardless of place of residence.” 207 Tenn. at 351, 339 S.W.2d at 578.

Respondents rely upon the provisions of T.C.A. § 49-201(2) and (7), dealing with powers of the Quarterly County Court under the education statutes, as follows:

“(2) To consider, on the recommendation of the county board of education, school budgets for the county elementary and county high schools, and to provide necessary funds to enable said county board to meet all obligations under the adopted budgets.”
******
“(7) To levy such taxes for county elementary and county high schools as may be necessary to meet the budget submitted by the county board of education and adopted by the quarterly county court.”

These statutes have been held to permit the governing body of a county to make a special tax levy for the building, repair and equipment of county schools, without division under T.C.A. § 49-605. See Southern v. Beeler, 183 Tenn. 272, 282-290, 195 S.W.2d 857 (1946); State ex rel. Cope v. Davidson County, 198 Tenn. 24, 29-31, 277 S.W.2d 396 (1955).

Where, however, the county does not make such a special purpose levy, but lawfully appropriates funds to current school operations, as had been done here with the portion of sales taxes at issue, then those funds become subject to the apportionment provisions of the general school statutes. In the Southern case, supra, the county allotted tax proceeds to the school budget under the guise of a special levy for repair and maintenance. It was held that these funds had to be divided with a city school system. See 183 Tenn. at 290-291, 195 S.W.2d 857.

Therefore, while the Quarterly County Court is certainly not obligated to allocate these receipts to a current school budget, when it does do so we are of the opinion that special school districts within the county are entitled to a proportionate part under T.C.A. § 49-605. Accordingly, we are of the opinion that the courts below erred in holding that the second portion of retail sales tax proceeds appropriated by the Quarterly County Court to the annual school budget were not subject to division with the city school system.

In view of the conclusions reached by the Chancellor, he did not comment upon the evidence offered on this subject, including the statistics filed with the answer of the respondents. Neither he nor the Court of Appeals considered whether division should be allowed with respect to any school years prior to the filing of the suit. Neither party has attempted to brief that question. The principal relief which petitioners have sought is a declaratory judgment.

Since the issues are not fully developed, we remand the cause to the Chancery Court for disposition of any further questions concerning the division of these retail sales tax proceeds.

All costs incident to the appeal of this case are taxed to respondents. The Chancellor will fix all other costs.

COOPER, C. J., and FONES, HENRY and BROCK, JJ., concur.

      . But see T.< :.A. § 49-711.

      . Nothing in the statutes governing the beer I ax authorizes the use of these tax receipts for school purposes. See T.C.A. §§ 57-301 et seq.


source: Caselaw Access Project

author: FONES, Justice.

license: Public Domain

text:
    Melvin A. LEVY and M. L. Fortner et al., Appellants, v. STATE of Tennessee BOARD OF EXAMINERS FOR SPEECH PATHOLOGY AND AUDIOLOGY et al., Appellees.
    Supreme Court of Tennessee.
    Aug. 1, 1977.

      Calvin N. Taylor, Cheek, Taylor & Groover, Knoxville, for appellants.
    Brooks McLemore, Atty. Gen., Frank J. Scanlon, Asst. Atty. Gen., Nashville, for appellees. .
   OPINION

FONES, Justice.

Plaintiffs appeal from a chancery ruling upholding the Tennessee Board of Examiners for Speech Pathology and Audiology denial of their applications for licenses as audiologists. The first error assigned is that the chancellor erred in finding the Board’s action was supported by substantial and material evidence in the record, when in fact its action was arbitrary, capricious and an abuse of discretion. Plaintiffs also charge that the chancellor erred in refusing to consider letters from legislators as evidence in construing the Speech Pathologist and Audiology Act, T.C.A. § 63-1701 et seq.

The licensing procedure for audiologists is governed by the Act, which creates the Board of Examiners and requires it to pass on all applications for license. The Act defines the practice of audiology as:

“(g). . . . the application of nonmedical principles, methods, and procedures of measurement, testing, appraisal, prediction, consultation, counseling, and instruction related to hearing and disorders of hearing for the purpose of modifying communicative disorders involving speech, language, auditory function, or other aberrant behavior related to hearing loss.”

Two methods of licensing are provided for. Under T.C.A. § 63-1710 the applicant must have a masters degree and pass an examination, while T.C.A. § 63-1713 provides:

“63-1713. Present practitioners. — The board shall waive the examination and educational requirements for those applicants who, on July 1, 1973, or in the two (2) years prior to this chapter, for a period of at least six (6) months, have been actively engaged in the practice of speech pathology or audiology upon proof of bona fide practice presented to the board in the manner prescribed by the board’s regulations, providing that they file an application for examination on or before two (2) years after July 1, 1973.”

The Board promulgated regulations describing the manner of proof of prior practice; and both plaintiffs submitted applications for licenses under the waiver provision of the statute.

The Board initially denied both applications in an open hearing in which plaintiffs were allowed to make oral presentations and had counsel present. Subsequent to the denial plaintiffs were informed of their right to a “formal due process .hearing” before the Board, which they demanded.

The hearing was trial-type and adversary and conducted according to the terms of the Administrative Procedures Act, T.C.A. §§ 4-507 — 4-527.

At the hearing both plaintiffs testified extensively about their prior experience in the area of audiology. Both described in detail the manner of testing they employed in their work. While both' agreed a very substantial portion of their prior experience related to the fitting of hearing aids, they stated that some testing was done to determine hearing loss as assistance to physicians.

Counsel representing the Board as an adversary advocate, called one Dr. David Lipscomb, a speech pathology and audiology professor from the University of Tennessee. Doctor Lipscomb went into great detail describing the normal work functions of the practice of audiology. He explained many of the testing procedures employed by audiologists in determining hearing losses and their sources. This essentially was all the relevant evidence presented to the Board on the question of the qualifications of plaintiffs from their prior experience.

The Board made a written “Final Decision” in both cases. The only findings made by the Board were identical:

“Based upon the sworn testimony of witnesses, all evidence introduced and argument of counsel, the Board finds as a matter of fact and law that the Petitioner, Luther M. Fortner [Melvin A. Levy] has at no time engaged in the practice of audiology as that term is used in T.C.A. Section 63-1713 and as defined in T.C.A. Section 63-1703(g).
Accordingly, the decision of the Board on June 5, 1975, denying Petitioner’s application for license is affirmed.”

T.C.A. § 4-519 provides in part:

“A final decision shall include findings of fact, conclusions of law, and reasons for the ultimate decision. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.”

The foregoing is not a mere technicality but is an absolute necessity without which judicial review would be impossible. As Justice Douglas pointed out in Baltimore & O. R. Co. v. Aberdeen & R. R. Co., 393 U.S. 87, 89 S.Ct. 280, 21 L.Ed.2d 219 (1968):

“The requirement for administrative decisions based on substantial evidence and reasoned findings — which alone make effective judicial review possible — would become lost in the haze of so-called expertise. .Administrative expertise would then be on its way to becoming ‘ “ ‘a monster which rules with no practical limits on its discretion.’ ” ’ ” 393 U.S. at 92, 89 S.Ct. at 283, 21 L.Ed.2d at 224.

Another excellent statement concerning the necessity of specific findings by administrative boards is found in USV Pharmaceutical Corp. v. Secretary of Health, E. & W., 151 U.S.App.D.C. 284, 466 F.2d 455 (1972):

“As we have frequently emphasized, findings of fact are not mere procedural niceties; they are essential to the effective review of administrative decisions. Without findings of fact a reviewing court is unable to determine whether the decision reached by an administrative agency follows as a matter of law from the facts stated as its basis, and whether the facts so found have any substantial support in the evidence.” 466 F.2d at 462.

Other states whose courts pass on the administrative denial or revocations of licenses likewise have expressed the need for specific findings by the boards:

“We find it impossible to properly review the issues raised in this appeal because of the failure of the Board to make specific findings of fact on the several charges made against Dr. Gandy.
While exactness of form and procedure is not required in the order of administrative agencies or boards, such specific and definite findings upon the evidence should be made as will enable the court on review to determine the questions of law involved and whether the general findings should stand, particularly when there are material facts at issue.” State Board of Medical Examiners v. Gandy, 248 S.C. 300, 149 S.E.2d 644, 646 (1966).

In Allied Investment Co. v. Oklahoma Securities Com’n, 451 P.2d 952 (Okl.1969), the Oklahoma Supreme Court had before it an administrative revocation of a securities broker’s license. The commission had conducted an evidentiary hearing and issued an order revoking the dealers license without setting forth any facts. The Court remanded the case to the commission stating:

“A recitation of the findings of fact and conclusions of law is a vital and necessary part of any order by an administrative agency acting in a quasi-judicial capacity. The purpose of which is to enable the parties and the reviewing tribunal [to] make a determination whether the case has been decided upon the law and evidence or, on the contrary, upon arbitrary or extralegal considerations.” 451 P.2d at 953.

In the present case, the Board made no specific findings regarding deficiencies in these plaintiffs’ experiences nor did they articulate wherein appellants’ experience fails to qualify as the practice of audiology, as defined in T.C.A. § 63-1703. Consequently it is impossible for us to say whether or not their action was or was not based on substantial evidence or furthermore was an abuse of discretion.

Although the chancellor has made some detailed findings these cannot be substituted for those by the Board because they would amount to an usurpation of the Board’s judgment which is specifically prohibited by T.C.A. § 4-523(h).

Plaintiffs’ second assignment is that the chancellor erroneously labeled as incompetent certain letters written by legislators after the enactment of the Act, regarding their construction of which persons were to be included in the grandfather clause.

Although statutory ambiguity sometimes requires that we resort to certain legislative history in order to ferret out legislative intent, see e. g. Banks v. City of Mason, 541 S.W.2d 143 (Tenn.1976); City of Memphis v. Roberts, 528 S.W.2d 201 (Tenn.1975); the letters, testimony or other evidence rendered by a legislator retrospectively is not admissible on such issues.

The Tennessee Supreme Court has not addressed this issue before, but the states that have hold such evidence inadmissible. See 82 C.J.S. Statutes § 361 n. 94 at 793.

The following three statements by the Supreme Courts of New Jersey, South Carolina and Wisconsin are typical:

“While reports and comparable documents evidencing legislative purpose have been freely considered by this court, it has not at any time suggested that it would approve the extraordinary course of taking testimony of individual legislators as to their actual intent or understanding when they voted upon the legislation.” Dumont Lowden, Inc. v. Hansen, 38 N.J. 49, 183 A.2d 16 at 20 (1962). “ ‘It is a settled principle in the interpretation of statutes that even where there is some ambiguity or some uncertainty in the language used, resort cannot be had to the opinions of legislators or of others concerned in the enactment of the law, for the purpose of ascertaining the intent of the legislature.’ ” Bowaters Carolina Corporation v. Smith, 257 S.C. 563, 186 S.E.2d 761, 764 (1972).
“Members of the legislature have no more right to construe one of its enactments retrospectively than has any other private person.” Cartwright v. Sharpe, 40 Wis.2d 494, 162 N.W.2d 5, 12 (1968).

This case is remanded to the Chancery Court of Davidson County for the entry of an order of remand to the Board of Examiners of Speech Pathologists and Audiologists with instructions to reconsider the record heretofore made before it and promulgate a decision containing findings of fact, reasons for its decision and conclusions of law in accord with the requirements of T.C.A. § 4-519 and the judicial decisions discussed herein.

The costs of this appeal are adjudged against the appellees.

COOPER, C. J., and HENRY, BROCK and HARBISON, JJ., concur.


author: BYERS, Judge.

text:
    Al TINES, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 2, 1977.
    Certiorari Denied by Supreme Court June 27, 1977.

      Charles E. Alexander, Nashville, for appellant.
    Brooks McLemore, Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Nashville, Elmer D. Davies, Jr., Dist. Atty. Gen., Franklin, for appellee.
   OPINION

BYERS, Judge.

The Appellant was convicted of attempting to commit a felony and sentenced to serve seven (7) months and fifteen (15) days in the County Jail and to pay a fine of five hundred dollars ($500.00).

The Appellant was the sole owner of Tiny Auto Electric, Inc. from January of 1973, until July 16,1973, when he sold his stock in the company to his brother, William Tines. On the same date, by resolution of the corporation, the Appellant resigned from the board of directors of the company and as an officer of the corporation. On May 24, 1974, the Appellant, along with Bobby Joe Griggs and William Tines, signed a continuing guarantee agreement not to exceed ten thousand dollars ($10,000.00) with the Liberty Bank of Brentwood. This was to guarantee a demand note in the sum of ten thousand dollars ($10,000.00) made by Liberty Bank to Tiny Auto Electric, Inc. and signed by William D. Tines. On May 30, 1974, a resolution of Tiny Auto Electric, Inc. was filed with the Liberty Bank designating the Liberty Bank as depository of the corporation. This resolution showed the Appellant as Chairman of the Board and gave the Appellant draft authority on the corporation’s account.

The evidence shows that on October 10, 1974, the Appellant issued a check in the amount of six thousand five hundred dollars ($6,500.00) to Tiny Auto Electric, Inc., a business establishment in Davidson County, Tennessee. The check was delivered to Tiny Auto Electric, Inc. on the date it was issued at its business location in Davidson County. The check was drawn on the Barnett Bank of Fort Walton Beach of Fort Walton Beach, Florida. The check was deposited in the account of Tiny Auto Electric, Inc. at the Liberty Bank of Brentwood in Williamson County. The Appellant did not make the deposit in the Liberty Bank of Brentwood. The check was processed by the Liberty Bank through the normal banking channels. On October 23, 1974, the Liberty Bank learned that the check had not been honored by the Barnett Bank because of insufficient funds. When the check was deposited, the account of Tiny Auto Electric, Inc. was overdrawn.

On October 10, 1974, the day prior to the deposit of the six thousand five hundred dollar ($6,500.00) check, the Tiny Auto Electric, Inc. account showed a balance of thirteen dollars and ten cents ($13.10). The bank had honored overdrafts on this account. The commercial banker of Liberty Bank discussed this problem with the Appellant and advised him that unless the account was cleared up, the bank would call the ten thousand dollar ($10,000.00) demand note. After the check was deposited to the Tiny Electric account, and the account was debited for previous overdrafts, the account was reduced to a balance of five thousand three hundred forty-seven dollars and seventy-eight cents ($5,347.78). An additional deposit of eight hundred dollars ($800.00) was made also. From October 11,1974, the date the check was deposited, through October 23, 1974, when the Liberty Bank was notified that the check was not honored, seventeen (17) checks were accepted by the Liberty Bank and paid from the Tiny Auto Electric, Inc. account. The total amount of these checks was six thousand seventy-two dollars and eighty-eight cents ($6,072.88). The balance remaining in the account was one hundred twelve dollars and twenty-six cents ($112.26). The six thousand five hundred dollars ($6,500.00) check has not been paid.

After the six thousand five hundred dollar ($6,500.00) check was returned to the Liberty Bank, the Appellant was notified that it had been returned for insufficient funds. The Appellant subsequently requested Liberty Bank to present the check to the Florida bank again. Liberty Bank sent the check bank through the banking channels on October 24, 1974. On November 8, 1974, the check was again returned marked insufficient funds.

On October 17,1974, Liberty Bank wrote a letter to Tiny Auto Electric, Inc. demanding payment of the ten thousand dollar ($10,000.00) demand note. Appellant acknowledged the demand by his signature on the demand letter of October 17, 1974. On October 21, 1974, the Appellant and his brother, William Tines, came to the bank with a check in the amount of eight thousand nine hundred dollars ($8,900.00). This check was made out to the Appellant and he endorsed it to the bank. The proceeds of the check were used to reduce the ten thousand dollar ($10,000.00) demand note to six thousand five hundred dollars ($6,500.00).

A new- note in the amount of six thousand nine hundred nine dollars and eighty-four cents .($6,909.84) was made. This included the principle amount of six thousand five hundred dollars ($6,500.00) plus four hundred nine dollars and eighty-four cents ($409.84) in advance interest. This note was executed by Tiny Auto Electric, Inc. and signed by A1 Tines as Chairman and Bill Tines as President.

Four thousand seven hundred seventy-six dollars and fifty cents ($4,776.50) plus eighteen dollars and thirty-two cents ($18.32) interest was applied to a previous note of Bill Tines. Two hundred fifty-five dollars and eighty-six cents ($255.86) was deposited to the account of Tiny Auto Electric, Inc. and one hundred dollars ($100.00) was deposited to the personal account of Bill Tines. This exhausted the eight thousand nine hundred dollar ($8,900.00) check.

In his first (1st) assignment of error, the Appellant says that venue was not in Williamson County where the case was tried. We disagree.

The question of venue is controlled, as we view the record, by the status of the Appellant in his relationship between the Liberty Bank and Tiny Auto Electric, Inc. This record reveals that the Appellant held himself out to the bank as a participant in the company. The bank, in dealing with the company, obviously relied heavily on the Appellant. The Appellant is revealed as the prime mover of this trust. When the company was in difficulty on October 10, 1974, because of overdrafts, the Appellant, by his check, solved the difficulty and obtained credit for the company account on which checks were written. There is sufficient evidence to show that when the check was made to the company in Davidson County that the Appellant knew that it would be deposited in the bank in Williamson County to secure credit for the company account.

It is our opinion that the Appellant was in control of Tiny Auto Electric, Inc. and that he issued the check in this case to obtain credit for the company. The purpose of T.C.A. § 39-1959, on which the prosecution is based, is to protect the public from fraud accomplished by the use of checks. State v. Cooley, 141 Tenn. 33, 206 S.W. 182 (1918). In Cooley the Court said:

“The purpose of the legislature in enacting the statute now under consideration being to protect the public from fraud accomplished by the use of a check drawn by the person tendering it, the court should hold . . that one who draws a check and accomplishes the designated fraud is within the statute, regardless of whether he drew the check on his personal account or in some representative capacity. . . . ”

We hold under the facts present in this record, that the act of the Tiny Auto Electric, Inc., in depositing the check in Williamson County, was in fact the act of the Appellant who made his check available to Tiny Auto Electric, Inc., a company which he owned or substantially controlled. It was through this company, with Appellant’s knowledge, that the fraud was accomplished. The evidence clearly shows that the check' was deposited in Williamson County where the credit was obtained. Venue may be in one or more counties. T.C.A. § 40-105. The obtaining of credit took place in Williamson County. Therefore, the Appellant can be tried in that county even though the check was drawn in Davidson County. Taylor v. State, 520 S.W.2d 370, (Tenn.Cr.App. 1974). The Appellant set in motion an act in Davidson County which was consummated in Williamson County where the check was deposited and credit obtained. The first (1st) assignment of error is overruled.

In his second (2nd) assignment of error, the Appellant says the verdict is inconsistent with the proof.

The Appellant testified that at the time he wrote the check he asked his wife to transfer the funds necessary to cover the draft into the account into which the check was drawn. For unexplained reasons this was not done and the check was returned marked insufficient funds. The check was run through a second (2nd) time at the request of A1 Tines after the Liberty Bank contacted the Florida bank on November 1 and found sufficient funds in the Appellant’s account to cover the check. Since there was money in the account on November 1, 1974, to pay the check, Appellant insists that he could not be convicted. The check was not paid because the Appellant had told the Florida bank not to honor the check since he had taken care of the six thousand five hundred dollar ($6,500.00) check by depositing the eight thousand nine hundred dollar ($8,900.00) check with the Liberty Bank on October 17, 1974. The evidence in the record clearly indicates that the eight thousand nine hundred dollar ($8,900.00) check of October 17, 1974, was for other consideration and not to pay the six thousand five hundred dollar ($6,500.00) check. The question of fraudulent intent is for the jury to determine from the credible evidence in the case. State v. Rice, 490 S.W.2d 516 (Tenn. 1973). We think the evidence is sufficient on which to base the verdict. The Appellant has failed to show that the evidence preponderates against the verdict. State v. Grace, 493 S.W.2d 474 (Tenn. 1973); Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768 (1967).

In his third (3rd) assignment of error, the Appellant says it was error for the trial court to allow an improper hypothetical question.

The record indicates that when the hypothetical question was first objected to, the trial court sustained the objection. The jury was then excused, and after a colloquy between the trial judge and counsel for the State and Appellant, the Appellant withdrew his objection to the question on condition that he be allowed to ask certain questions concerning the hypothetical facts. The trial judge allowed this request, whereupon the hypothetical question was asked. Appellant’s attorney then propounded his desired hypothetical question. We think Appellant thus waived any complaint concerning the matter. Yates v. State, 206 Tenn. 118, 332 S.W.2d 186 (1960).

In his fourth (4th) assignment of error, the Appellant says the court erred in not directing a verdict of acquittal at the close of the evidence. We do not agree.

When the evidence is conflicting and susceptible of different conclusions, a motion for a directed verdict should be overruled. Rambo v. State, 4 Tenn.Cr.App. 466, 472 S.W.2d 911 (1971); Hill v. State, 4 Tenn.Cr.App. 325, 470 S.W.2d 853 (1971). The fourth (4th) assignment of error is overruled.

We note that the judgment is guilty of attempting to commit a felony and that the judgment renders the Appellant infamous.

We modify the judgment to show that the Appellant is guilty of attempting to commit the felony of violation of T.C.A. § 39-1959 by issuing a check of more than one hundred dollars ($100.00) without sufficient funds to pay the same. Further, the portion of the judgment rendering Appellant infamous is stricken as the offense is not one designated as an infamous crime. T.C.A. § 40-2712.

As modified, the judgment of the trial court is affirmed.

O’BRIEN and DUNCAN, JJ., concur.


author: TATUM, Judge.

text:
    David WELCH and Charles K. Bialeschki, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    April 27, 1977.
    Certiorari Denied by Supreme Court Aug. 1, 1977.

      J. Stanley Rogers, Rogers & Parsons, Manchester, for appellants.
    Brooks McLemore, Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Charles S. Ramsey, Jr., Dist. Atty. Gen., Manchester, for appellee.
   OPINION

TATUM, Judge.

Appellants entered a guilty plea to an indictment charging each of them with the manufacture of marijuana. Welsh was fined $3,000.00 and sentenced to serve not less than one nor more than five years in the State Penitentiary. Bialeschki was fined $1,000.00 and sentenced to serve not less than one nor more than three years in the Penitentiary.

They appeal from an order of the Trial Judge refusing to consider their Petitions for Suspended Sentences because the appellants were not sentenced to the County Jail or Workhouse and had commenced serving their sentences when the petitions were filed. We must reverse.

The case is before us on the Technical Record only. The judgments of conviction were rendered by virtue of guilty pleas bargained between the State and appellants. Each judgment shows on its face that it was signed and ordered to be entered of record by the Trial Judge on 30 September 1976, and that it was actually entered on the minutes of the court the same day.

The motions for suspended sentences were filed with the Clerk of the Trial Court on 29 September 1976 — the day before the judgments of conviction were signed and entered.

The order denying suspended sentences is as follows:

“ORDER DENYING SUSPENDED SENTENCE
This matter is before the Court on the petition filed herein by each defendant for a suspended sentence. The petition was filed on the 29th day of September, 1976. Each defendant herein was convicted of manufacturing marijuana and judgment was pronounced on their plea of guilty on September 27, 1976 and the defendants each commenced serving their sentence on that date, although not actually transported to the Penitentiary until later.
The threshold question involved in this matter is whether or not the trial Judge, could, assuming he was so disposed, suspend the sentence imposed against the defendants herein, the judgment having become final. TCA Section 40-2903 provides as follows:
No trial Judge shall have the authority under the provisions of Section 40-2901, to suspend the execution of sentence after the defendant shall have begun to serve such sentence, except where the sentence is to confinement in the County Jail or Workhouse for the commission of a misdemeanor or a felony pursuant to Section 40-3105, for a period of time not more than five years, with out [sic] without a fine. In such case, the trial Judge, may, at any time after the defendant has actually served not less than 30 days of such jail or workhouse sentence, suspend the remainder thereof despite the expiration of the term of Court at which such judgment was pronounced or an earlier refusal to suspend in toto such judgment. Nothing herein shall be construed as granting to trial Judges the right to suspend the payment of fines except at the term at which judgment therefor was rendered. [Emphasis supplied]
Thus, it may be seen, that the trial Judge has no authority to suspend a sentence after the defendants shall have begun to serve same, with two exceptions:
1. Where the sentence is to confinement in the County Jail or Workhouse for the commission of a misdemeanor, or,
2. Where the sentence is to confinement in the County Jail or Workhouse for the commission of a felony pursuant to Section 40-3105, for a period of time not more than five years, with or without a fine.
It may be seen from the judgment of conviction entered against the defendants herein that this case falls within neither of the exceptions set forth above; the defendants were not sentenced to confinement in the County Jail or Workhouse for the commission of a misdemeanor and they were not sentenced to the County Jail or Workhouse for the commission of a felony for a period of time not more than five years. The defendants herein were sentenced to the Penitentiary.
Consequently, the undersigned Trial Judge is of the opinion that pursuant to TCA 40-2903, he does not have the authority to suspend the sentence herein.
Accordingly, it is, therefore, ordered, adjudged and decreed by the Court that the application for a suspended sentence filed herein by the defendants, David Welch and Charles Bialeschki be and the same is hereby denied by the Court.
ENTER: This the 14th day of October, 1976.
/S/ Gerald L. Ewell CIRCUIT JUDGE”

By oral pronouncement, the Trial Judge ordered the appellants to commence serving their sentences on September 27. As previously stated, they filed motions for suspended sentences on September 29 and the judgments of conviction were not signed by the Trial Judge, ordered entered of record, or entered of record until 30 September 1976. We think that a petition for a suspended sentenced filed the day before the final judgment is signed and entered of record meets the requirements of T.C.A. § 40-2903.

It is axiomatic that judgments are not effective and cannot be executed, until entered on the minutes of the Court. A court speaks only through its minutes. Ivey v. State, 210 Tenn. 422, 360 S.W.2d 1 (1962); Neely v. State, 210 Tenn. 52, 356 S.W.2d 401 (1962); Jackson v. Handell, 46 Tenn.App. 234, 327 S.W.2d 55 (1959); Mullen v. State, 164 Tenn. 523, 51 S.W.2d 497 (1932).

The appellants were serving their sentence only by virtue of the judgments of conviction entered on the minutes of the Court. They commenced serving the sentences before the judgments were effective or could be lawfully executed. We, therefore, hold that T.C.A. § 40-2903 did not preclude the Trial Judge from considering the applications for suspended sentences on their merits. Since the petitions for suspended sentences were filed prior to the date of the final judgments of conviction, the provisions of T.C.A. § 40-2902, directing that the judgment and suspension of sentence be in the same minute entry, could have been complied with.

T.C.A. § 16-106 contemplates that a judgment shall be entered on the day it is pronounced. This statute is directory only. State v. Hardin, 163 Tenn. 471, 43 S.W.2d 924 (1931). However, the failure to comply with it delays execution of the judgment.

For the foregoing reasons, we hold that the Trial Judge did have authority to consider appellants’ petitions for suspended sentences on their merits.

The State relies on Becton v. State, 506 S.W.2d 137, 140 (Tenn.1974). The facts in that case are not applicable to the facts in the case sub judice.

The appellants also contend that T.C.A. § 40-2903 is unconstitutional as violative of Amendment XIV, United States Constituí tion. In view of our disposition of this case, this question is moot. However, the Statute was held to be constitutional by the Supreme Court in Becton v. State, supra.

We reverse the judgment of the Trial Court on the appellants’ petitions for suspended sentences and remand the case with the instruction that the Trial Judge consider the petitions on their merits.

WALKER, P. J., and DWYER, J., concur.


author: DWYER, Judge.

text:
    James Bell JONES and Anna Marie Andrews, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    May 19, 1977.
    Certiorari Denied by Supreme Court Aug. 1, 1977.

      Robert I. Livingston, Memphis, for appellants.
    Brooks McLemore, Atty. Gen., William W. Hunt, III, Asst. Atty. Gen., Nashville, Henry P. Williams, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

DWYER, Judge.

From a trial on consolidated indictments the appellants appeal their convictions for committing the following offenses and the judgments pronounced thereon: assault and battery, a fine of $1,000 each and confinement for eleven months and twenty-nine days in the workhouse; crime against nature and each sentenced to confinement for not less than ten years nor more than fifteen years; abduction of a female, T.C.A. 39-3709, and each sentenced to confinement for not less than fifteen and one-half years nor more than twenty-one years. The trial court ordered all sentences to be served consecutively.

The assignments of error on behalf of both appellants urge that the evidence is insufficient, that the trial court erred in ordering the sentences to be served consecutively and that the court erred in not declaring a mistrial.

The evidence under attack is hereafter narrated from our review of this record to reveal the merits or non-merits of this assignment of error.

A sixteen-year-old female was forced by the appellant Jones into his automobile at gunpoint around 9:00 a. m. on March 9, 1975, in the City of Memphis. She was then driven to an apartment in that City occupied by the appellant Andrews. Inside the apartment she was told she would have to turn a “trick” with a man. The victim then was required to have intercourse with one man who paid the appellants $15 and perform an act of fellatio on another man with appellants getting $15 for the latter act. The appellants then tied the victim to a bed with neckties and beat her with coat hangers for a considerable period of time with resulting bruises and cuts to her body. She was then forced to perform fellatio on the appellant Jones and cunnilingus on the appellant Andrews. The appellant Jones then had anal intercourse with her and struck the victim about the head when she attempted to resist, inflicting a severe laceration with accompanying bleeding on the carpet.

On the following day the victim managed to call her mother on the telephone while appellant Jones was watching television and appellant Andrews was away and told her mother where she was and to help her. Her mother immediately contacted the police, telling them that her daughter was being held against her will at the address her daughter had given her.

When the police arrived they found the victim weeping and hysterical. A revolver was recovered from the apartment and blood stains were noted by the police on the bed and floor of the bedroom. A piece of necktie was found around the ankle of the victim. Both appellants acknowledged that the victim had been to the apartment, with appellant Andrews relating that she had come to the apartment distraught and she gave her refuge.

The jury by its verdict resolves the issue of credibility of the witnesses and in this instance by their verdicts, it is obvious the jurors believed the victim. Under the rules governing appellate review, as outlined in McBee v. State, 213 Tenn. 15, 19, 20, 372 S.W.2d 173 (1963) and in State v. Grace, Tenn., 493 S.W.2d 474 (1973), we are not free to reevaluate that testimony nor to overturn the judgment of the trial court unless the evidence preponderates against appellants’ guilt and in favor of their innocence.

They have not shown a preponderance here. There is ample evidence to support the verdicts from the facts we have narrated in our review of this evidence. The assignments as to the sufficiency are accordingly overruled.

We now consider the assignment as to the consecutive sentences. The trial court in ordering the sentences to be served consecutively had this to say:

“The Court further finds that on September 21, 1976, at the Motion for a New Trial for the above defendants, arguments were heard regarding the question of consecutive time. It was shown at that time that defendant Andrews had one previous felony conviction and three misdemeanor convictions and that defendant Jones had six previous misdemeanor convictions. It was also shown during the course of the trial that Jones operated a gambling house in which not only die (sic) he derive income from gambling operations but also from the showing of pornographic movies and from prostitution.
“The Court further finds that defendant Andrews was present at the house and assisted in the handling of the gambling house, the showing of pornographic movies, and acts of prostitution. It was further shown during the trial that Jones abducted the 16 year old female victim from her residence, held her in captivity with the help of defendant Andrews for 36 hours, required her to perform acts of prostitution, required her to perform oral fellatio and cunnilingus on both defendants, she was tied by neckties to a bed for several hours, she remained tied up while bleeding extensively for several hours and was denied medical attention;
“The Court further finds that the standards of (1) professional criminal, (2) multiple offender, (3) dangerously mentally abnormal person, and (4) dangerous offender, have been met as set out in Gray v. State, 538 S.W.2d 391;”

We think the trial court ordering the consecutive sentences was well within the ambit of Gray v. State, Tenn., 538 S.W.2d 391 (1976). This assignment is overruled.

The mistrial assignment has not been briefed; it is therefore without merit. Rockett v. State, Tenn.Cr.App., 475 S.W.2d 561 (1971). With the court sustaining appellants’ objection to the introduction of certain sex paraphernalia found in the apartment, there is no merit in the assignment. It is accordingly overruled.

The judgment of the trial court is affirmed.

WALKER, P. J., and TATUM, J., concur.


text:
    Harvey G. AMBURN, Sr., alias, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 9, 1977.
    Certiorari Denied by Supreme Court Aug. 1, 1977.

      Philip P. Durand, Knoxville, for appellant.
    Brooks McLemore, Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Albert L. Witt, Ralph E. Harwell, Asst. Dist. At-tys., Knoxville, for appellee.
   OPINION

TATUM, Judge.

This is a matricide in which the defendant, Harvey G. Amburn, was convicted of the first degree murder of his mother, Mrs. Ollie Amburn. He was sentenced to death by electrocution but the punishment was commuted by the Governor to life imprisonment. The judgment as commuted is affirmed.

On appeal, the defendant questions the constitutionality of the Tennessee Death Penalty Statutes, the sufficiency of the evidence, and the competency of evidence. Other assignments were made which have been rendered moot by the Governor’s commutation.

We will first consider the fifth assignment of error which states that the evidence preponderates against the finding of premeditation and deliberation, and therefore, the guilty verdict of murder in the first degree is not justified.

The defendant and the victim shared the same residence. The victim had been distraught with the defendant for cashing her Social Security checks. Mrs. Mildred Whitaker, the victim’s sister-in-law, testified that within one month prior to the date of the death of Mrs. Amburn, the defendant “seemed to be mad at her [Mrs. Ollie Am-burn] all the time.” About a month prior to Mrs. Amburn’s death, the defendant “was cursing her [Mrs. Amburn], said she ought to be dead, he ought to take a gun and shoot her . . .”

On Sunday, November 9, the deceased was visiting her sister-in-law, Mrs. Lillie Whitaker. The defendant drove her home that night. On Monday, November 10, the defendant’s girlfriend, Margaret Price, attempted to telephone the deceased two times but received no answer. In the late afternoon, the defendant answered the telephone and told Ms. Price that his mother was around somewhere “. . . probably out in the yard.” Lillie Whitaker also attempted to telephone the deceased four or five times on Monday, November 10, but received no answer. She telephoned four or five times on Tuesday, November 11. At about 6:00 o’clock .P.M., the defendant answered the telephone. He first told Mrs. Whitaker that the deceased “must be in the yard,” and upon further questioning, told her that the deceased “must have gone to Warren’s” (in Virginia).

Harvey Amburn, Jr., son of the defendant, testified that he and his wife went to the Ollie Amburn residence at about 4:45 P.M., on Monday, November 10, to borrow money from the defendant. He saw a spent .22 caliber cartridge on the kitchen table. While there, he observed the deceased lying in bed and testified that she was lying in the same position as shown by photographs taken incident to the homicide investigation by police officers. Harvey Amburn, Jr., did not see his grandmother’s wound and thought that she was asleep.

On the next day, Tuesday, November 11, at about 5:30 P.M., Harvey Amburn, Jr., again visited the home of the deceased. The defendant told him that he had killed Mrs. Amburn, using the bullet that was on the kitchen table. The defendant requested Harvey Amburn, Jr., to assist him in loading the body of the deceased into an automobile. Harvey Amburn, Jr. telephoned the police after conferring with his brother, Allen. The police arrived at the Amburn home at about 8:00 o’clock P.M., on 11 November 1975.

The police found Mrs. Amburn in bed with a bullet wound in the top of her head. The bullet was found lodged in her neck. There was no indication of a struggle and there was nothing inconsistent with her having been asleep at the time she was shot. She could have died at 3:00 or 4:00 o’clock A.M., on Monday morning, November 11.

A .22 caliber rifle owned by the defendant fired the bullet that killed Mrs. Am-burn. The rifle was found at the scene of her death.

The defendant told the police officer that he observed one of his sons, Gordon Am-burn, shoot Mrs. Amburn at about 4:00 o’clock A.M., on Monday, November 10. The defendant gave the police officer no reason for not reporting this alleged occurrence. Gordon Amburn testified that he was at home in bed at that time.

A handwriting expert testified that a letter purportedly written by Ollie Amburn, which would have cast suspicion upon Gordon Amburn, was written by the defendant. This letter was sent to Mrs. Whitaker by the defendant after he was incarcerated. The handwriting expert also testified that a check dated 10 November 1975, made to the defendant in the sum of $40.00, purporting to have been made by the deceased, bore the handwriting of the defendant with the possible exception of the signature. The endorsement on the check was the genuine signature of the defendant. This check was cashed at a tavern on November 11.

The defendant offered no evidence.

We cannot sustain Assignment V without finding that the evidence preponderates against the verdict of the jury finding the defendant guilty of murder in the first degree. State v. LaChance, 524 S.W.2d 933 (Tenn.1975); Taylor v. State, 506 S.W.2d 175 (Tenn.Cr.App.1973). We find abundant evidence in the record supporting the jury verdict finding the defendant guilty of murder in the first degree, including the elements of deliberation and premeditation. This assignment is overruled.

The defendant’s third assignment of error is as follows:

“The Court erred in allowing the prosecution witness Richard L. Shipp to testify as to comparison of writings allegedly made by the appellant with the writings or signatures introduced for that purpose as the genuine writings or signatures of Ollie G. Amburn, and to express opinions that writings reputedly made by Ollie G. Amburn were not in fact writings of Ollie G. Amburn, but were writings made by the appellant, Harvy [sic] G. Amburn, Sr.”

Mr. Richard L. Shipp, an expert witness on handwriting and questioned documents, compared known and undisputed specimens of the handwriting of the deceased and of the defendant with the handwriting on the letter that was purportedly written by the deceased and which might have cast suspicion on Gordon Amburn. He also compared the known handwriting specimens of the deceased and the defendant with the writings on the face of a check and other writings that were purportedly written by the deceased. He was allowed to testify that in his opinion, these questioned writings were not written by the deceased, but were, in fact, written by the defendant. It is the defendant’s contention that under T.C.A. § 24-708, the expert testimony was not admissible to show that the defendant did in fact write these questioned documents. The defendant contends that the expert could go no further than state his opinion that the deceased did not write them.

T.C.A. § 24-708 provides as follows:

“24-708. Handwriting comparison. — In all the courts comparison of disputed writing or signatures with any writing or signature proved to the satisfaction of the judge to be genuine, shall be permitted to be made by expert witnesses, and such writing or signatures, and the evidence of expert witnesses respecting the same, shall be submitted to the court, or courts, and jury as evidence of the genuineness, or otherwise, of the writing or signature in dispute.”

The defendant relies on Franklin v. Franklin, 90 Tenn. 44, 16 S.W. 557 (1891). This was a will contest and the issue was the genuineness of the handwriting of an holographic will. The contestants sought to prove by an expert witness that the will did not bear the genuine handwriting of the decedent and further, that it was forged by the proponent. The Court held that T.C.A. § 24-708 authorized expert opinion evidence that a document was a forgery, but did not authorize such evidence to prove the identity of the forger. In Franklin v. Franklin, supra, the Supreme Court was following the New York case, Peck v. Callaghan, 95 N.Y. 73 (1884). This is no longer the law in New York. In 7 Wigmore, Evidence § 2016, 223, n.l (3rd Ed. 1940), Professor Wigmore says:

“. . . the first statute, authorizing a comparison of ‘a disputed writing with any writing proved . . . to be genuine’ received an astounding construction in 1884 (Peck v. Callaghan, 95 N.Y. 73) when the Court refused to admit genuine specimens of the alleged forger of a document in order to prove it his forgery; thus (1) the words ‘any writing’ were made meaningless, and (2) the statute was made to help all forgers and to handicap their victims; compare the contrary rulings in England and Missouri; perverse legal thinking could hardly go further; and in 1888 (c. 555) the Legislature was obliged again to correct the Court;..."

We agree with Professor Wigmore that “perverse legal thinking could hardly go further” and we will not attempt to take it further by following Franklin v. Franklin, supra, and Peck v. Callaghan, supra. The holdings in these cases are contrary to the express provisions of T.C.A. § 24-708. We hold that expert witnesses may compare authenticated specimens of handwriting with disputed writings to determine (1) whether the disputed writing has been forged, and (2) if the expert concludes that the document is a forgery, the expert can compare it with authenticated writings to determine the identity of the person who forged it. The expert’s testimony in both instances is admissible in evidence to prove not only that the document was a forgery, but the identity of the forger. We think that this is the logical rule and the holding mandated by the express terms of the Statute. See, D. Paine, Tennessee Law of Evidence § 227, at 244 (1974). Assignment III is overruled.

The fourth assignment is:

“The Court erred in allowing prosecution witness Lillie Whittaker [sic] to testify, over objection to to [sic] conversations between her and Ollie Amburn which took place two or three months before her death.”

The record reflects that Lillie Whitaker testifiéd concerning several conversations between Ollie Amburn and the defendant which occurred two to three months prior to Ollie Amburn’s death. In one conversation, the defendant told the deceased that he intended to kill his son, Gordon Amburn. In the other conversation, the defendant expressed displeasure when the deceased said that she was going to have her Social Security checks sent directly to her bank, discontinuing the practice of having them sent to her home. She had not received some of these checks.

We think that the defendant’s feeling of animosity towards his son, Gordon, is relevant in view of the defendant’s statement to the police officers that he saw his son, Gordon, kill his mother. It was also relevant that the defendant and the victim were in disagreement about the victim’s Social Security checks. This assignment is overruled.

The Supreme Court, in Collins v. State, 550 S.W.2d 643 (Tenn.1977), held the mandatory provisions of the Tennessee death penalty statutes to be unconstitutional. Since the death penalty was imposed in this case, Honorable Ray Blanton, Governor of Tennessee, has commuted the defendant’s death sentence to life imprisonment. Under authority of the Tennessee Supreme Court’s Opinion on the Petition to Rehear in Collins v. State, supra, and finding no other error in the record, we affirm the judgment of the Criminal Court of Knox County, as commuted by the Governor.

WALKER, P. J., and DUNCAN, J., concur.


author: GUITTARD, Chief Justice.

text:
    Shirley Sue ZEISLER, In the Interest of Paula Paige Zeisler, a child, Appellant, v. Paul ZEISLER, Appellee.
    No. 19156.
    Court of Civil Appeals of Texas, Dallas.
    April 12, 1977.
    Rehearing Denied May 25, 1977.

      Bruce W. Bowman, Jr., Turner, Rodgers, Sailers, Jordan & Calloway, Dallas, for appellant.
    Lawrence Fisehman, Weil, Craig & Fisch-man, P. C., Dallas, for appellee.
   GUITTARD, Chief Justice.

The question raised by this appeal is whether a nonresident father who has been ordered by a Texas divorce decree to make periodic payments for the support of his child is amenable to Texas process served outside the state in a suit by the mother to increase the payments, although none of the parties now resides in Texas. We hold that the father is amenable to suit in Texas and, accordingly, we reverse the trial court’s dismissal of the action for want of jurisdiction.

The parties were formerly residents of Texas. The father left the mother and the child about three weeks after the child’s birth. In 1971 the parties were divorced in Texas by a decree which gave the mother custody and ordered the father to make monthly payments for the support of the child to the Dallas County child support office. In 1972 the mother and child moved to Georgia, where they still reside. In 1972 or 1973 the father moved to Florida. He still resides there, but has continued to make his payments under the decree through the Dallas County child support office, which has transmitted them to the mother. In 1976 the mother brought this action in one of the domestic relations courts of Dallas County, alleging that the needs and expenses of the child have increased and that the father’s income also has substantially increased. Process was served personally on the father in Florida in accordance with Tex.R.Civ.P. 108.

The father made a special appearance and moved to dismiss the action for lack of jurisdiction over his person. The trial court heard the evidence on the motion to dismiss along with evidence on the merits. After the hearing, the judge made findings of fact in which he found that $400 was a reasonable amount for the father to pay each month for support of the child. However, the judge also found that the court had no jurisdiction, and he sustained the motion to dismiss.

On this appeal the mother contends that the trial court had jurisdiction under Tex. Family Code Ann. § 11.051 (Vernon Supp. 1976), which provides:

In a suit affecting the parent-child relationship, the court may exercise personal jurisdiction over a person on whom service of citation is required or over the person’s personal representative, although the person is not a resident or domiciliary of this state, if:
(1) the child was conceived in this state and the person on whom service is required is a parent or an alleged or probable father of the child;
(2) the child resides in this state, as defined by Section 11.04 of this code, as a result of the acts or directives or with the approval of the person on whom service is required;
(3) the person on whom service is required has resided with the child in this state; or
(4) notwithstanding Subdivisions (1), (2), or (3) above, there is any basis consistent with the constitutions of this state or the United States for the exercise of the personal jurisdiction.

Appellant contends that this statute is applicable since the child was conceived in Texas within subdivision (1), appellee lived with the child in Texas within subdivision (3), and appellee had a continuing duty under the divorce decree to make support payments in Texas within subdivision (4). Appellant recognizes that application of the statute is limited by the minimum-contacts requirement of due process, but argues that these facts are sufficient to establish minimum contacts. Appellee replies that minimum contacts are not established, since none of the parties has resided in Texas for several years and appellee has done no purposeful act giving rise to the claim in this state.

No case cited to us has dealt with a similar situation. The ultimate test of due process is that stated in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), that assumption of personal jurisdiction must not offend “traditional notions of fair play and substantial justice.” This statement was qualified by the requirement in Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958) that there must be “some act by which the defendant purposefully [availed himself] of the privilege of conducting activities within the forum State, thus invoking benefits and protections of its laws.” In O’Brien v. Lanpar Co., 399 S.W.2d 340, 342 (Tex.1966), the Supreme Court of Texas added another requirement to the effect that the cause of action must arise from the act or transaction in the state on which jurisdiction is based. The court also adopted a statement from Tyee Construction Co. v. Dulien Steel Products, Inc., 62 Wash.2d 106, 381 P.2d 245, 251 (1963), amplifying the requirement of “traditional notions of fair play and substantial justice” by saying that consideration should be given to “the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.”

Within these guidelines, the concept of extraterritorial jurisdiction over the person has been pushed further in contract and tort cases than in domestic-relations litigation. In a contract case, an obligation to perform in the forum state appears to be sufficient when coupled with any other relevant contact, such as negotiation of the contract in the forum state or the mailing of a signed contract to the other party in the forum state. Atwood Hatcheries v. Heisdorf & Nelson Farms, 357 F.2d 847 (5th Cir. 1966); N. K. Parrish, Inc. v. Schrimscher, 516 S.W.2d 956, 959 (Tex.Civ.App.—Amarillo 1974, no writ); Pizza Inn, Inc. v. Lumar, 513 S.W.2d 251, 254 (Tex.Civ.App.—Eastland 1974, writ ref’d n. r. e.); National Truckers Service, Inc. v. Aero Systems, Inc., 480 S.W.2d 455, 459 (Tex.Civ.App.—Fort Worth 1972, writ ref’d n. r. e). In tort cases an injury within the forum state from a defective product manufactured by the defendant has been held sufficient when coupled with other contacts of the manufacturer within the state, although the other contacts may have been unrelated to the cause of action and even though the defective product was not brought into the forum state until after it had been in use elsewhere for many years. Eyerly Aircraft Co. v. Killian, 414 F.2d 591, 595 (5th Cir.1969). Moreover, the occurrence of a tort within the forum state has been held sufficient, although neither plaintiff nor defendant had a residence or place of business there. Elkhart Engineering Corp. v. Dornier Werke, 343 F.2d 861 (5th Cir. 1965). On a quasi-tort theory, the minimum-contacts test for a paternity suit has been considered satisfied by conception of a child in the state where the mother lived. State ex rel. Nelson v. Nelson, 298 Minn. 438, 216 N.W.2d 140, 143 (1974).

Texas has applied the minimum contacts test in domestic relations cases in which foreign judgments for accrued alimony rendered in the states of last matrimonial domicile have been recognized as entitled to full faith and credit. Mitchim v. Mitchim, 518 S.W.2d 362, 367 (Tex.1975); Fox v. Fox, 526 S.W.2d 180, 183 (Tex.Civ.App.—Dallas 1975, no writ). In each of these cases, however, the forum state was considered to have a strong interest in providing for the support of the former wife, who continued to live there.

In the present case we are faced with the question whether the removal of the mother and child to Georgia leaves Texas with no interest in providing adequate support for the child and, therefore, requires appellant to pursue her claim for increased child support wherever appellee may be found. After reviewing the authorities, we hold that the minimum-contacts test is satisfied notwithstanding the present nonresidence of appellant and her child. The Hanson v. Denckla requirement of purposeful activity in the state is satisfied by the father’s relationship with appellant in Texas, the state of last matrimonial domicile. The O’Brien requirement that the cause of action must arise out of that activity is satisfied also, since the father’s obligation to support the child arose from his relationship with the mother in Texas. Application of “traditional notions of fair play and substantial justice,” as amplified in O’Brien, involves broad evaluation of “the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation [emphasis added].” We conclude that such an evaluation, likewise, supports the assumption of personal jurisdiction. Recognition of the factor of “relative convenience of the parties,” does not in our opinion imply adoption of forum non con-veniens as a constitutional doctrine in this kind of case, although the convenience of the forum for all parties may be a factor favoring personal jurisdiction. Thus, in Mitchim, the supreme court, after considering the recency of defendant’s residence in the forum state, the relative convenience of the parties in litigating in one state or the other, and the relative availability of evidence in each state, concluded that the case fell within the constitutional limits of personal jurisdiction. The present case, admittedly, is not so strong because of appellee’s longer absence from the state and also because the mother and child are no longer residents of Texas. Considerations of convenience cannot be cited to support assumption of personal jurisdiction here, but, on the other hand, no other forum is shown to be more convenient for both parties. Moreover, since Texas is the state of last matrimonial domicile, no other state has both a superior interest and clear authority to enforce appellee’s obligation to support his child. Georgia, where appellant and the child now live, would have an interest in providing for the child’s support, but, so far as this record shows, appellee has engaged in no significant activities there, and we are not in a position to decide whether appellee’s undoubted obligation to support the child, without other contacts, would be enough for extraterritorial jurisdiction in that state. Since appellee’s obligation to support the child arose in Texas and until now has been regulated and defined by a Texas decree ordering him to make payments in Texas, we conclude that requiring him to respond in Texas to a suit to increase the amount of those payments does not offend “traditional notions of fair play and substantal justice.”

This conclusion is consistent with the decisions above cited in both contract and tort cases. We see no reason why an action to determine and enforce a parent’s obligation to support his child should encounter greater obstacles with respect to jurisdiction than an obligation arising from contract or tort. Denial of jurisdiction would encourage the noncustodial parent to avoid obligations for support of children by moving to a different state where the custodial parent might encounter practical difficulties in pursuing remedies to require adequate support. These difficulties may exist even though the custodial parent and the child have also moved to another state. We conclude that the “basic equities of the situation” require that for this purpose the noncustodial parent should be subject to continuing personal jurisdiction of the state of last matrimonial domicile, at least as long as a currently enforceable order of that state requires support payments to be made there.

Although considerations of convenience must be weighed along with other factors, as in Mitchim, we do not understand that inconvenience of the forum is, in itself, a constitutional obstacle if the requirements of due process are otherwise satisfied. A persuasive argument may be made for application of forum non conven-iens in litigation between separated and divorced parents, but we need not decide whether the trial court had discretion to dismiss the action under that doctrine, since appellant has made no attempt to invoke it in this case. For discussion of that doctrine, see Flaiz v. Moore, 359 S.W.2d 872 (Tex.1962) and Cole v. Lee, 435 S.W.2d 283 (Tex.Civ.App.—Dallas 1968, writ dism’d).

For the reasons stated, we hold that the judge erred in dismissing the cause for lack of jurisdiction over the person of appellee. The record shows, however, that the judge did not dismiss the action until after he had heard the evidence and had found that a reasonable amount for appellee to pay for support of his child is $400 per month. Ap-pellee does not challenge that finding on this appeal by cross-point or otherwise. Our duty under Tex.R.Civ.P. 434 is to render the judgment which the trial court should have rendered. Therefore, we reverse the judgment of the trial court and render judgment increasing the amount of monthly payments from $200 to $400, effective on the first day of October, 1976, the first month following the trial court’s order.

Reversed and rendered.

ON MOTION FOR REHEARING

In his motion for rehearing appellee contends that we erred in rendering judgment for appellant rather than remanding for a new trial because the hearing on the merits was a nullity, as were also the court’s findings and conclusions, since the cause was dismissed for want of jurisdiction. We do not agree that the hearing or the findings were ineffective.

The record shows that the trial court did not observe section 2 of rule 120a, Texas Rules of Civil Procedure, which provides: “Any motion to the jurisdiction . shall be heard and determined before a plea of privilege or any other plea or pleading may be heard.” After a conference in chambers and before proceeding with the hearing, the judge announced that the court would first take up the special-appearance plea of lack of jurisdiction and would “withhold its ruling in connection with that matter and go ahead and hear the evidence with reference to the motion for modification of support.” No objection to this procedure was offered by appellee. Counsel for appellee presented evidence in support of his plea to the jurisdiction and called both appellant and appellee as witnesses. After both parties announced that they had no further evidence on the plea, the judge directed counsel for appellant to proceed on his motion for additional child support. Again counsel for appellee made no objection, and he cross-examined witnesses called by appellant.

On the merits, appellant testified concerning the child’s needs and the increased expenses of caring for her. She asked for an increase in the payments from $300 to $600 per month. Appellee, called as a witness by appellant, testified that he was making $21,000 a year as an airline pilot in 1971 and that in 1975 his income from all sources had increased to $45,000. He anticipated making at least that much in 1976. He had an itemized list of his monthly income and expenses, which was offered in evidence. He testified that he owned a new $14,000 Cadillac automobile on which he was making payments and also owned an airplane and an interest in a hunting and fishing venture in Alaska. Appellant’s counsel testified on his claim for attorney’s fee. Appellee’s counsel cross-examined and called appellant to the stand for testimony that she had money to pay her attorney. After close of all the evidence, the judge heard arguments on the jurisdiction question as well as on the merits. He then announced that he would make his decision later in the week.

There is no record of the actual pronouncement of the judge’s decision except his order dismissing the cause on September 29, 1976, and his findings and conclusions, dated October 4,1976, to the effect that the parties did not have such “recent minimal contacts” as to meet the due-process requirement of in-personam jurisdiction. On October 11 he made additional findings to the effect that the circumstances of the child and of appellee had materially and substantially changed since the entry of the decree providing for support in amount of $300 per month and that appellee “should be required to pay the sum of $400 per month for the support of Paula Paige Zeis-ler.”

In this state of the record we see no reason for another hearing to determine the amount of the support payments. The trial judge apparently recognized that the plea to the jurisdiction raised a legal question of some difficulty, and, accordingly, he proceeded to hear the evidence on both matters at the same hearing, apparently for the convenience of the parties, both of whom had come from other states. If appellee had objected to this procedure, the judge would have been required under rule 120a to rule on the plea to the jurisdiction before hearing evidence on the merits, and if he had proceeded over appellee’s objection, a different question would now be presented. No such objection was made. Appellee, therefore, must be presumed to have consented to this procedure, which was calculated to serve his convenience as well as appellant’s because it would obviate another trip to Dallas in the event the plea to the jurisdiction should be overruled, either by the trial court or on appeal.

The trial court’s fact findings concerning the amount of support appear entirely reasonable under the evidence in this record. Appellee has presented no cross-point attacking these findings, although appellant prayed in her brief for rendition of judgment “declaring child support in the amount of $400.” Even now, he does not attack them for lack of evidence. If we should remand the case to the trial court with instructions that the judge should review the evidence he has already heard and make new findings, we would have no reason to believe that the new findings would be different. Appellee does not suggest that additional evidence would be available that might be expected to change the result. Appellee’s sole contention is that since the trial court ultimately dismissed the cause for lack of jurisdiction, even though that dismissal is now determined to' be erroneous, the hearing on the merits and the fact findings are now “nullities.” We conclude that the law does not require an empty formality unrelated to the merits of the action and manifestly contrary to the interests and convenience of all parties.

Appellee relies on Touchy v. Houston Legal Foundation, 432 S.W.2d 690, 691 (Tex.1968), in which the defendant filed both a plea in abatement on the ground that the plaintiffs had no standing to sue and a motion for summary judgment on that ground and others. The trial court heard both at the same hearing and entered an order granting both. The supreme court observed that after sustaining the plea in abatement and dismissing the suit, the court’s action in granting the summary judgment was meaningless, and, consequently, the only question on appeal was whether the plea in abatement was properly sustained. We do not regard that case as controlling here because in this case the trial court did not, as in Touchy, enter an order granting two inconsistent remedies. The court dismissed the case for want of jurisdiction of the person, but nevertheless, having heard the evidence presented by both parties on the merits, without objection, made fact findings for the benefit of the parties and the appellate court in the event the order of dismissal should be held improper. We conclude that this was an appropriate exercise of the court’s fact-finding function.

Our attention has been called to the fact that our judgment purports to raise the payments from $200 to $400 per month, rather than from $300 to $400 per month. This correction is now made, although it does not change the effect of the judgment.

Motion for rehearing overruled.

      . Appellant does not rely on the concept of continuing jurisdiction under Tex.Family Code Ann. § 11.05 (Vernon Supp.1976), since the divorce decree was issued before enactment of Title 2 of the Code in 1973.

      . Section 11.051 would appear by its terms to apply even though the parties have subsequently resided together in another state, but we need not consider whether the due-process limitation would permit the assumption of extraterritorial jurisdiction in that situation. For a discussion of the scope of § 11.051 in this context, see Sampson, Long Arm Jurisdiction Marries the Texas Family Code, 38 Tex.B.J. 1023, 1028, and footnote 37.

      . This holding should not be interpreted as supporting litigation of conservatorship issues in a state where neither the child nor the custodial parent resides, since that question may involve different considerations. On this point also, see Sampson, supra, at 1031, and cf., Clayton v. Newton, 524 S.W.2d 368, 372 (Tex.Civ.App.— Fort Worth 1975, no writ) (Oklahoma divorce court lacked jurisdiction to relitigate custody after custodian and child had become residents of Texas).

      . Sampson, supra, at 1031.


author: J. CURTISS BROWN, Chief Justice.

text:
    Carol Ann GRIFFIN et vir., Appellants, v. Dr. Norman A. MILES, Appellee.
    No. 1637.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 29, 1977.
    Rehearing Denied July 20, 1977.

      John H. Holloway, Houston, for appellants.
    Kenneth Tekell, Tekell, Book & Matthews, Frank B. Davis, Stephen Perry, Andrews, Kurth, Campbell & Jones, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This appeal arises from the trial court’s overruling of appellants’ motion to reinstate a cause from which they took a voluntary nonsuit.

In June 1975, appellants, Carol Ann Griffin and her husband, filed suit against ap-pellees, Dr. Norman A. Miles and Heights Hospital, in Houston, Texas alleging negligence and breach of contract on the part of Dr. Miles and Heights Hospital in failing to remove a surgical sponge from Mrs. Griffin’s abdomen during a Caesarean Section. The presence of this sponge induced an infection causing her severe pain and required a second operation to remove it. Both appellees answered, and Dr. Miles filed a cross-action against Heights Hospital asking for indemnification in the event he was found negligent. Prior to selection of the jury, appellants took a voluntary nonsuit against Dr. Miles, and, in turn, he took a nonsuit against the hospital. The jury returned a verdict for $20,000.00 against the hospital in favor of appellants. Appellants then filed a motion for new trial asking that their nonsuit be set aside and the cause as to Dr. Miles be reinstated. They alleged that the nonsuit was taken upon oral representations that Dr. Miles’ insurer would enter into a settlement agreement with appellants in the amount of $15,000.00 ($100.00 to be paid to Mrs. Griffin and $14,900.00 to her husband) under a covenant not to sue, and the assignment to appellants of any cause of action Dr. Miles might have against the hospital for contribution or indemnification.

Appellants claim that after the trial of their case against the hospital, Dr. Miles refused to perform according to the agreement and, instead, offered the $15,000.00 settlement in exchange for a full release of all parties from any liability and without assigning their cause against the hospital. Appellants refused to accept this offer and in their motion to reinstate claimed that there was either no meeting of the minds pertaining to the agreement or, alternatively, that the settlement was induced by fraud, accident or mistake. There was no complaint raised as to the judgment against the hospital. The trial court overruled appellants’ motion, and they now appeal that ruling to this court.

It is well settled that the right of the plaintiff to take a voluntary nonsuit is absolute and cannot be denied. State v. Gary, 359 S.W.2d 456, 458-59 (Tex.Sup.1962); Brooks v. O'Connor, 39 S.W.2d 22, 24 (Tex.Sup.1931); Chicago, R. I. & P. Ry. v. Southern Pacific Co., 458 S.W.2d 234, 235 (Tex.Civ.App.—Houston [1st Dist.] 1970, writ ref’d n. r. e.). This right, however, is not without limitation; for example, where the right of an adverse party to be heard on his claim for affirmative relief is prejudiced. Tex.R.Civ.P. 164 (as amended to permit taking a nonsuit up to time plaintiff rests his case).

While this right to take a nonsuit can be denied only under limited circumstances, a motion to reinstate the cause upon which the plaintiff has taken a non-suit is, by contrast, directed to the sound discretion of the trial judge and his action will only be disturbed by an appellate court upon the showing of a clear abuse of discretion. Chester v. Texas Employers Ins. Ass’n, 265 S.W.2d 648, 651 (Tex.Civ.App.—Texarkana 1954, writ ref’d n. r. e.); Butler v. Light Pub. Co., 112 S.W.2d 542, 543 (Tex.Civ.App.—San Antonio 1937, writ dism’d). In this case appellants requested that their cause against Dr. Miles be reinstated because he refused to perform in accordance with an oral settlement agreement. There is no written evidence of this agreement entered into the record as contemplated under Tex.R.Civ.P. 11.

No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.

Moreover, appellants have offered no reason why this agreement was not committed to writing and entered into the record. The only evidence offered at the hearing on the motion for new trial was the testimony of the appellants’ counsel establishing the terms of the agreement. While the testimony of this interested party was undisputed, we feel that the trial court acted within its discretion in denying appellants’ motion to reinstate. Our decision in no way reflects on the validity of appellants’ claim by way of bill or review or institution of a new suit against Dr. Miles for negligence in performing the operation or for breach of contract. However, we are not prepared to say that the trial court abused its discretion by failing to reinstate a cause based on the allegations of an oral settlement agreement between the opposing attorneys which is subject to the fallibility of human recollection and could have been easily entered into the record. Cf. McClain v. Hickey, 418 S.W.2d 588 (Tex.Civ.App.—Texarkana 1967, writ ref’d n. r. e.); Maddox v. City of Amarillo, 390 S.W.2d 51 (Tex.Civ.App.—Amarillo 1965, no writ).

All points of error being considered the judgment of the trial court is affirmed.

Affirmed.