text:
    STAFFORD CONSTRUCTION COMPANY, INC., Plaintiff in Error, v. Burt MARTIN, Sr. and Burt Martin, Jr., Defendants in Error.
    No. 6476.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 3, 1975.
    Shafer, Gilliland, Davis, Bunton & McCol-lum, Elton Gilliland, Ray Stoker, Odessa, for plaintiff in error.
    Clifford, Sims & Kidd, John C. Sims, Richard Hubbert, Lubbock, for defendants in error.
   OPINION

OSBORN, Justice.

This is an appeal by Writ of Error from a default judgment. The judgment is reversed and the cause remanded for a trial on the merits.

Burt Martin, individually and as next friend for Burt Martin, Jr., alleged that on November 9, 1974, his son sustained severe personal injuries in a two-vehicle accident on State Highway 83 between Seagraves and Denver City, Texas. He alleged that at the accident site, the highway was under construction and that Stafford Construction Company, Inc., who was doing the construction and repair work, was negligent and that such negligence was a proximate cause of the accident and injuries sustained by his son, for which he sought substantial damages. The petition alleged that service of process could be had upon Robert H. Stafford, the registered agent of the defendant corporation. Citation which was issued in this case stated in part:

“CITATION
“THE STATE OF TEXAS
“To Robert H. Stafford Registered Agent for Stafford Construction Company, Inc. 1603 13th St Lubbock, Texas
“Defendant-, in the hereinafter styled and numbered cause:
“You are hereby commanded to appear before the 106th District Court of Gaines County, Texas, to be held at the courthouse of said County in the City of Seminole, Gaines County, Texas, by filing a written answer to the petition of plaintiff * * * »

It was duly served on April 20, 1975.

No answer was filed and on May 20, 1975, the trial Court entered a default judgment. On July 7, 1975, a Petition for Writ of Error was filed in the trial Court and all necessary procedures have been taken to invoke our appellate jurisdiction to review such judgment. This remedy brings before the appellate court the whole case for the review of errors properly assigned, and it is not necessary that Plaintiff in Error excuse its failure to defend the case in the trial Court or to show that it has a meritorious defense. Benthall v. Goodwin, 498 S.W.2d 510 (Tex.Civ.App.—El Paso 1973, no writ); Middlemas v. Wright, 493 S.W.2d 282 (Tex.Civ.App.—El Paso 1973, no writ).

By its first point of error, Stafford Construction Company, Inc. contends that the citation was defective because it was directed not to the defendant in the trial Court, but to an alleged agent, and the citation actually commanded answer by such agent, not the named defendant.

Prior to the adoption of the Rules of Civil Procedure, Article 2022 provided that “Citations shall be directed to the sheriff or any constable of the county where the defendant is alleged to reside or be, and command him to summon the defendant to appear and answer * * * Now Rule 101, Tex.R.Civ.P., provides that the citation “ * * * shall be directed to the defendant and shall command him to appear * * * ft

In every case with which we are familiar, the court has held that a citation directed to an agent of the defendant rather than to the defendant itself is defective. In Texas & Pac. Ry. Co. v. Florence, 14 S.W. 1070 (Tex.App.1889), the citation commanded the sheriff to “summon Will Montague, acting agent of the Texas and Pacific Railroad Company;”. The appellate court held that while the citation may be served upon the local agent, that citation, or the command, must be to summon the corporation, and not its agent, and therefore held that it was error to overrule a motion to quash said citation.

That same court in a writ of error case in Mutual Life Ins. Co. of New York v. Uecker, 46 Tex.Civ.App. 84, 101 S.W. 872 (1907, no writ), had before it a citation which commanded the officer to “summon Edwin Chamberlain, agent of the Mutual Life Insurance Company of New York * * * In reversing the default judgment, the court said:

“ * * * The citation did not direct the officer to summon the Mutual Life Insurance Company, the defendant in the case, but directed that a person alleged in the petition to be the agent of the defendant should be summoned. This was not a compliance with the statute, which required the citation to command the officer to summon the defendant to appear and answer the plaintiff’s petition, and hence the citation in. this case did not confer jurisdiction on the court below to render the judgment by default against the plaintiff in error. (Cases cited).”

A default judgment was again attacked in American Citizens’ Labor & Protective Inst. of Texas v. Henderson, 295 S.W. 701 (Tex.Civ.App.—Texarkana 1927, no writ), where the citation issued by the clerk directed the sheriff or any constable “ * * to summon the commissioner of insurance of the state of Texas to be and appear * * In reversing the default judgment, the court said:

“The judgment rendered is assailed in this appeal upon the ground that the trial court did not have jurisdiction of the person of the plaintiff in error because the citation issued was void. It will be observed that it commanded the sheriff to summon the commissioner of insurance, who, presumably, was made the agent or attorney of the plaintiff in error, upon whom process of this character might be served. We are of the opinion that a citation which directs the sheriff to summon the agent to appear and answer in a suit is not sufficient to give the court jurisdiction to render a judgment by default against the principal.”

Writ of error served as the basis for the appeal from a default judgment in Temple Lumber Co. v. McDaniel, 24 S.W.2d 518 (Tex.Civ.App.—Beaumont 1930, no writ). In that case, the citation commanded the sheriff or any constable to summon “G. S. Smith, secretary and treasurer, Temple Lumber Company, whose principal office is at Pineland, Sabine county, Tex., to be and appear before the honorable district court of Sabine county, Texas, * * In reversing the default judgment, the appellate court said:

“Plaintiff in error’s first proposition is that ‘a citation, in an action against a corporation, which directs the officer to summon an agent of the corporation and not the corporation, is void and will not support a judgment by default without answer or appearance.’ Article 2022, R.S. 1925, sets forth the requisites of a citation. It says that citations shall be directed to the sheriff or any constable of the county where the defendant is alleged to reside or be, and ‘command him to summon the defendant to appear and answer the plaintiff’s petition at the next regular term of the court, stating the time and place of holding the same.’ The citation herein did not comply with this requirement. As shown supra, it commands the officer to summon G. S. Smith, the secretary and treasurer of the defendant corporation, Temple Lumber Company, to appear and answer. This was not a command to serve the defendant corporation, and will not sustain the judgment by default against the corporation, though served upon the person named as agent. Article 2022, R.S.1925; Railway v. Rawlins, 80 Tex. 579, 16 S.W. 430; Sun Mutual Ins. Co. v. Seeligson & Co., 59 Tex. 3; Mutual Life Ins. Co. v. Uecker, 46 Tex.Civ.App. 84,101 S.W. 872; American Citizens’ Labor & Protective Institution of Texas v. Henderson (Tex.Civ.App.), 295 S.W. 701; Beck v. Nelson (Tex.Civ.App.), 17 S.W.2d 144. The assignment is sustained.”

All of the cases which have been decided since the adoption of Rule 101, Tex.R.Civ.P., have reached the same results as those decided under the pre-existing statute concerning the issuance of citation. In Carborundum Company v. Keese, 313 S.W.2d 332 (Tex.Civ.App.—Amarillo 1958, writ ref’d n. r. e.), citation was directed to Jim Allison, agent of the defendant. In reversing the default judgment, the Court said:

“ * * * Rule 101, T.R.C.P. states: ‘The citation shall be styled “The State of Texas” and shall be directed to the defendant * * *.’ We think where it is stated shall that it is mandatory. Consequently, it is necessary that the citation shall be styled ‘The State of Texas’ and it must be directed to the defendant. The rule does not state to the defendant or his agent.”

In Bynum v. Davis, 327 S.W.2d 673 (Tex.Civ.App.—Houston 1959, no writ), the court considered a default judgment against Houston County and the Commissioners Court of Houston County in which citation was addressed only to “County Judge, et al.”. In passing on such a citation, the court said:

“Rule 101, T.R.C.P., provides, among other things, that ‘The citation shall be styled “The State of Texas” and shall be directed to the defendant and shall command him to appear by filing a written answer * * This provision is mandatory. The failure to comply with such provision rendered the judgment in question vulnerable and subject to being set aside on direct attack.”

We can only conclude that the citation directed to an alleged agent of the defendant and which commanded him to appear and answer was defective, and in a direct attack by Writ of Error such citation will not support a default judgment against the named defendant. The first point of error is sustained.

The Plaintiff in Error presents several other points of error, some of which appear to have merit. But in view of our disposition of the first point of error, there is no need to pass upon the other points since they do not raise issues which are likely to reoccur in a trial upon the merits.

The judgment of the trial Court is reversed and the cause remanded to the trial Court.


source: Caselaw Access Project

author: WARD, Justice.

license: Public Domain

text:
    Patricia Ann RILEY, Plaintiff in Error, v. Mildred MEAD, Defendant in Error.
    No. 6475.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 3, 1975.

      Stubbeman, McRae, Sealy, Laughlin & Browder, Alvin Walvoord, Jr., David K. Brooks, Midland, for plaintiff in error.
    Michael D. Eamey, Royal E. Caswell, Odessa, for defendant in error.
   OPINION

WARD, Justice.

The defendant below appeals by Writ of Error from a default judgment granted by the District Court of Ector County in the amount of $10,000.00 to Mildred Mead on her cause of action arising out of an automobile accident. The question concerns the lack of jurisdiction of the trial Court to enter the judgment because that Court either lacked the power or was in error in reinstating the cause of action which had been dismissed for want of prosecution, where more than thirty days had elapsed after the signing of an order of dismissal and where there was thereafter a failure to comply with the terms and requirements of Rule 165a, Tex.R.Civ.P. The judgment of the trial Court is reversed and the case is ordered dismissed.

This being a Writ of Error, the Plaintiff in Error is entitled to a full review to the same extent as on a direct appeal. The whole case is presented for revision of errors properly assigned, and it is not necessary for her to excuse the failure to defend the case in the trial Court or to show the existence of a meritorious defense. Middlemas v. Wright, 493 S.W.2d 282 (Tex.Civ.App.—El Paso 1973, no writ).

The Defendant in Error has filed no brief and therefore no challenge is made to the factual statements made in the one brief presented as to the contents of the record. We accept as correct the statements contained in the brief of the Plaintiff in Error as to the facts and record. Rule 419, Tex.R. Civ.P.; Crawford v. Modos, 465 S.W.2d 220 (Tex.Civ.App.—Beaumont 1971, writ dism’d). The Rule aside, all of the statements contained in the brief are consistent with the facts as reflected by the record.

On November 18, 1969, the plaintiff, Mildred Mead, filed her original petition in the District Court of Ector County, and asserted that she had been injured in an automobile accident caused by one Patricia Ann Riley. On December 29, 1971, the Court dismissed the case for want of prosecution. On January 21, 1972, the plaintiff filed a motion for reinstatement for the reason that “Proper service has not been made on the Defendant” and the plaintiffs motion to reinstate was granted on the same day. Over two years later, on March 12,1974, the District Court again entered an order of dismissal for want of prosecution. More than thirty days thereafter, on June 10, 1974, the plaintiff filed an unverified motion for reinstatement, the only grounds being that “Proper service has not been made on the Defendant”. The Court without a hearing purportedly reinstated the case that same day, June 10, 1974, that order being filed on June 19, 1974. On November 27, 1974, the default judgment complained of was entered in the sum of $10,000.00. The Plaintiff in Error, Patricia Ann Riley, is now timely before this Court by Writ of Error.

Appellant’s point under consideration is to the effect that the Court was without jurisdiction over the case at the time of the final judgment as the Court was without power to reinstate the case in June, 1974, or that the Court was in error in its action. The relief sought by the motion for reinstatement of June 10, 1974, was to set aside the judgment of dismissal and to restore the case on the trial docket. The motion for reinstatement was the same as a motion for new trial. The order of reinstatement was the equivalent to the granting of a motion for new trial. General Motors Corporation, Chevrolet Div., v. Lane, 496 S.W.2d 533 (Tex.1973); 4 McDonald, Texas Civil Practice, § 17.19.

Before the adoption of Rule 165a, orders granting new trials under circumstances similar to those in the present case were held to be wholly void. McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961); Universal Underwriters Insurance Co. v. Ferguson, 471 S.W.2d 28 (Tex.1971). Rule 329b-5 was construed in McEwen v. Harrison to mean that after a judgment became final, it having been rendered by a court which had the jurisdictional power to render it, and where relief by way of appeal or writ of error was not available, a proceeding in the nature of a bill of review became the exclusive method of vacating that judgment. Deen v. Kirk, 508 S.W.2d 70 (Tex.1974); Plains Growers, Inc. v. Jordan, 519 S.W.2d 633 at 644 (Tex.1974).

Some relief was then afforded to a worthy plaintiff whose case had been dismissed for want of prosecution by the enactment of Rule 165a. Now the court’s normal power to vacate its judgment within thirty days is extended to “any time within thirty days after the party or his attorney first received either a mailed notice or actual notice, but in no event later than six months after the date of signing the order of dismissal.” The Rule was considered in Cosper v. Aetna Life & Casualty Company, 513 S.W.2d 121 (Tex.Civ.App.—Dallas 1974, no writ). It was there pointed out that the language of the Rule does not extend a court’s power to vacate an order of dismissal to a period of six months after the order in all cases, but the power is limited to a period of thirty days after the plaintiff has notice of the dismissal, with six months after the order as the ultimate limit. That court then held that since the motion to reinstate there under consideration failed to show that the applicant had no notice of the dismissal within the limited period, the trial court was without power to reinstate and correctly dismissed it for want of jurisdiction. In the present case, there was no attempt to comply with Rule 165a as to the required contents of the motion, as to the verification, as to any hearing on the motion or as to the findings of the Court. The reinstatement was improperly granted at a time when the trial Court had lost jurisdiction. It follows that the default judgment entered on November 27, 1974, was void because the Court no longer had jurisdiction of the cause of action to enter any such judgment.

The motion to reinstate could not have been considered as an equitable bill of review. The plaintiff below was not seeking equitable relief and none of the requirements for a bill of review were met. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950).

It follows that the judgment of the trial Court is reversed and, because the judgment of dismissal entered on March 12, 1974, had become final, the case is ordered dismissed. Rule 434, Tex.R.Civ.P.


author: SHANNON, Justice. PHILLIPS, Chief Justice

text:
    R. E. PIERSON et al., Petitioners, v. Sterling McCLANAHAN et al, Respondents.
    No. 12332.
    Court of Civil Appeals of Texas, Austin.
    Dec. 10, 1975.
    Rehearing Denied Jan. 7, 1976.

      Warren C. Lyon, Dallas, for petitioners.
    Hank Price, II, pro se.
    George Wm. Perry, Dallas, for respondents.
   SHANNON, Justice.

The jurisdiction of this Court is invoked by the filing of three petitions for writs of error with the district clerk of Bell County to review a judgment entered by the district court of Bell County. Petitioners are R. E. Pierson, Instant Credit Service, Inc., and Hank Price. Respondents are Sterling and Jerrine McClanahan, doing business as the House of Sterling; Don Von, doing business as Von Music; Doris Langford, doing business as Tex’s True Value Hardware Center; T. M. Golliheari, doing business as Tom’s Auto Supply; and Doyle Whitehead and Ron Ambrose, doing business as Ragsdale Service Company.

The events culminating in the entry of the judgment are as follows. The transcript shows that on September 23, 1974, the district court notified counsel for all parties that the case was set for a jury trial for November 11, 1974, at 9:00 A. M. On October 29, 1974, attorney Clifton Holmes wrote petitioner Price that he was “ . withdrawing from your employ as counsel in this matter [McClanahan v. Pierson ], recognizing your inability to pay attorney’s fees and, at the same time, retain sufficient capital to meet the obligations you have assumed from ICS. I have enjoyed my association with you in the past and wish you best [sic] in your pro se efforts in the future.”

On November 2, 1974, Lloyd W. Wester-lage, a member of the Dallas County bar, wrote petitioner Price, “This is to confirm the fact that neither you, Mr. Robert E. Pierson or Instant Credit Service, Incorporated desires that I continue to represent any of you in the above referenced matter. Therefore, this is to notify you that I withdraw therefrom subject to the pleasure of the court.”

Thereafter, petitioner Price undertook the defense of his interests. On November 5, 1974, he filed with the district clerk a number of pleadings in a pro se capacity.

A pre-trial conference was held on Friday, November 8, 1974. Counsel for respondents and Price and Pierson were in attendance at that confeience.

In his affidavit petitioner Price swore that on Saturday, November 9, he obtained counsel to represent Instant Credit Service, Inc., in the trial on the following Monday. He also swore that it was necessary to secure the written approval of the president of the corporation before counsel was authorized to act. Price claimed that on Saturday he called counsel for respondents by telephone to inform him that it would be about noon Monday, November 11, before he and counsel could arrive in Belton from Dallas. Price also swore that counsel for respondents agreed to inform the district court of the telephone call.

The district court called the case at 10:35 A.M. on Monday, November 11,1974. Petitioners did not appear in person or by counsel. Respondents waived trial by jury and then proceeded to trial before the court. Respondents called five witnesses and placed in the record evidence of liability and damages. See Frymire Engineering Company, Inc. v. Grantham, 524 S.W.2d 680 (Tex.1975). At the conclusion of the evidence the court rendered judgment for respondents. The court signed the judgment, labeled “default judgment,” on November 14, 1974.

Seventeen days later, December 2, 1974, Instant Credit Service, Inc., filed its “Motion to Set Aside Default Judgment.” On the same date Price and Pierson filed a separate “Motion to Set Aside Default Judgment.” After hearing wherein respondents called no witnesses, the district court overruled those motions.

Petitioners’ point of error one is that the district court “ . . . abused its discretion in overruling Defendants’ Motion to Set Aside Default Judgment.” We will overrule the point.

The rules which govern the consideration of a motion for new trial to set aside a default judgment are well defined. A default judgment should be set aside and a new trial ordered in any case in which (1) the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; (2) provided the motion for new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939).

The rule in Craddock v. Sunshine Bus Lines, Inc., supra, was restated and explained by the Supreme Court in Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966). Concerning the requirement that the defaulting defendant must set up a “meritorious defense,” Chief Justice Calvert carefully explained that the rule in Craddock v. Sunshine Bus Lines, Inc., supra, does not mean “ . . . that the motion [for new trial] should be granted if it merely alleges that the defendant ‘has a meritorious defense.’ The motion must allege facts which in law would constitute a defense to the cause of action asserted by the plaintiff, and must be supported by affidavits or other evidence proving prima facie that the defendant has such meritorious defense.” Ivy v. Carrell, supra, at page 214. (Emphasis by the Supreme Court).

Because we have concluded that petitioners’ motions to set aside the default judgment do not “set up a meritorious defense,” it is not necessary to consider whether or not petitioners’ failure to appear and defend their interests was not intentional or the result of conscious indifference, but instead was due to a mistake or accident.

The most casual examination of the transcript shows that petitioners’ motions to set aside the default judgment do not meet the test of Ivy v. Carrell, supra, in that those motions did not allege facts which would constitute a defense to respondents’ cause of action and those motions were not supported by affidavits or other evidence proving prima facie that petitioners had a meritorious defense. In paragraph six of its “Motion to Set Aside Default Judgment,” petitioner Instant Credit Service, Inc., stated that it had “ . . .a good and meritorious defense to the cause of action alleged in Plaintiffs’ First Amended Original Petition in that neither ICS [Instant Credit Service, Inc.] or its agents induced the Plaintiffs to sign the written contracts by fraud of misrepresentation.” Ivy v. Carrell, supra, requires that the allegation in the motion “ . . must be supported by affidavits or other evidence proving prima facie that the defendant has such meritorious defense.” Petitioner Instant Credit Service, Inc., did not support its motion in any manner, much less by an affidavit or other evidence proving prima facie that it had a meritorious defense.

In paragraph two of their “Motion to Set Aside Default Judgment” petitioners Price and Pierson alleged that they had “. a meritorious defense to the Plaintiffs’ First Amended Original Petition as shown by their First Amended Original Answer which was offered to and allowed by the Clerk of this Court to be filed after the default judgment had been granted.” The rule of Ivy v. Carrell, supra, is that the motion for new trial should not be granted “ . . . if it merely alleges that the defendant ‘has a meritorious defense.’ The motion must allege facts which in law would constitute a defense to the cause of action asserted by the plaintiff . . .” (Emphasis by the Supreme Court) By no stretch of the imagination can it be said that paragraph two of Price’s and Pierson’s motion alleges facts. Furthermore, there is nothing to that part of paragraph two of Price’s and Pierson’s motion alleging a meritorious defense “as shown by their First Amended Original Answer.” An examination of the transcript does not reveal that such a pleading was even filed.

Unlike petitioner Instant Credit Service, Inc., petitioners Price and Pierson did file affidavits in an effort to support paragraph two of their motion to set aside the default judgment. Most of the statements contained in those aifidavits concern petitioners’ efforts to demonstrate that their failure to appear for trial was due to a mistake or accident. One affidavit, that of Dan L. Hilliard, a polygraph examiner, does represent an attempt to prove prima facie that Price and Pierson had a meritorious defense. In the affidavit Hilliard swore that he examined Pierson with respect to statements that he had made to those persons he had contracted with over a two-year period, and Hilliard was of the opinion that Pierson did not “. . . deliberately lie, nor did he give false information, to those who contracted for the ICS credit service.”

The affidavit of the polygraph examiner does not prove prima facie that Price and Pierson had a meritorious defense to petitioners’ cause of action. Moreover, results of a polygraph examination are not admissible in civil suits. Central Mutual Insurance Co. v. D. & B., Inc., 340 S.W.2d 525 (Tex.Civ.App.1960, writ ref’d n.r.e.), Skillern & Sons, Inc. v. Stewart, 379 S.W.2d 687 (Tex.Civ.App.1964, writ ref’d n.r.e.). As Hilliard could not have testified as to the results of the polygraph test at the hearing on the motion to set aside the default judgment, his affidavit, likewise, was not sufficient to show prima facie that Price and Pierson had a meritorious defense.

Petitioners’ second point of error is that the trial court erred “ . . .in overruling Defendants’ Motion for Separate Suits.” On November 5,1974, petitioner Price filed pro se a pleading titled, “Motion for Summary Judgment, or in the First Alternative, Motion for Separate Suits, or in the Second Alternative, Motion for Joinder of Parties Needed for Just Adjudication, or in the Third Alternative, Motion to Dismiss.” The pre-trial conference order shows that the district court acted on several parts of that pleading. The same order specifically recites that the “ . . . Motion for Severance be taken under advisement to be ruled on at the time of trial.”

The transcript does not show that the motion for severance was acted upon before judgment was entered. It seems clear, however, that the district court by entering judgment implicitly overruled the pending motion for severance. See Bowser v. Coca-Cola Company, 509 S.W.2d 688 (Tex.Civ.App.1974, writ ref’d n.r.e.).

Tex.R.Civ.P. 325 provides as follows:

“Rule 325. Errors on Motions

“In cases of motions for continuance, or for change of venue, or other preliminary motions made and filed in the progress of the cause, the rulings of the court thereon shall be considered as acquiesced in, unless complained of in the motion for new trial; and the judge may recite in his order disposing of the motion for new trial the grounds of such ruling. . .”

As previously stated, petitioners filed three pleadings denominated “Motion to Set Aside Default Judgment.” For purposes of this point, we will consider those motions as motions for new trial under Tex. R.Civ.P. 325. In none of those motions do petitioners complain that the district court erred in overruling the motion for severance. Because a motion for severance is a “preliminary motion,” (see Finder v. E. L. Cheeney Company, 368 S.W.2d 62 (Tex.Civ.App.1963, no writ)), the overruling of the motion for severance will be considered as acquiesced in by petitioners. Tex.R.Civ.P. 325.

By their point of error three, petitioners claim that the judgment awarded to each of the respondents a greater sum of money than each had prayed for in the trial petition. A perusal of respondents’ trial petition and the judgment shows that each respondent was awarded more in the judgment than he specifically prayed for in the petition. The extra sum for each respondent is accounted for, however, by the fact that the respondents had collectively prayed for a recovery of attorney’s fees in the sum of $1,500.00. In the judgment each respondent was apportioned a part of the recovery for attorney’s fees.

Petitioners’ fourth and final point of error complains of the judgment in awarding exemplary damages to respondents. The point clearly does not comply with Tex. R.Civ.P. 418 in that it does not direct the attention of the Court to the error relied upon. McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643 (1957), Crutchfield v. Associates Investment Company, 376 S.W.2d 957 (Tex.Civ.App.1964, writ ref’d). We have read, however, the argument under the point in an endeavor to ascertain petitioners’ complaint. In the argument we learn that petitioners complain that the allegations of exemplary damages in respondents’ trial petition “. . . are only concluso-ry in nature, and no supporting facts are set out.” In their trial pleading, respondents alleged that Pierson, as agent for Instant Credit Service, Inc., knowingly made certain material misrepresentations to respondents. Some fourteen such misrepresentations were then detailed in separate paragraphs. Respondents then pleaded that the petitioners knowingly made the misrepresentations “ . . for the purpose of injuring Plaintiffs, and each of them, and that the actions of the Defendants, and each of each, were of such nature as to justify exemplary damages in the sum of $5,500.00 to be prorated among the individual Plaintiffs in accordance with their losses . . . ” The fourth point of error will be overruled.

The judgment is affirmed.

Affirmed.

PHILLIPS, Chief Justice

(dissenting).

I respectfully dissent. This Court has just affirmed a default judgment which awards the respondents $4,009.61 in actual damages and $5,500.00 in exemplary damages.

Despite the Court’s detailed account of the facts leading up to the default, the Court has not found that the failure of the petitioners to appear before judgment was intentional or the result of conscious indifference on their part. Neither does the Court assert that the setting aside of the default judgment would occasion a delay or otherwise work an injury to respondents.

The Court based its affirmance solely on petitioners’ failure to set up a meritorious defense.

In their motion to set aside the default judgment, in addition to defensive pleadings denying the fraud, petitioners Pierson and Price incorporated the affidavit of a licensed and bonded polygraph operator in which the operator stated that during a five-hour polygraph examination of petitioner Pierson, covering the many charges of misrepresentation alleged by appellees, it was the operator’s opinion, based on the polygraph results, that Pierson “did not deliberately lie, nor did he give false information to those who contracted for the ICS service.” The affidavit stated that during the examination, Pierson truthfully denied each charge of misrepresentation concerning his sales efforts on behalf of Instant Credit over the past two years.

Petitioner Instant Credit Service, Inc., filed a separate motion to set aside the default judgment, which was sworn to by its attorney, and which stated, among other things, that Instant Credit Service, Inc., had “a good and meritorious defense to the cause of action alleged in Plaintiffs’ First Amended Original Petition in that neither ICS or its agents induced the Plaintiffs to sign the written contracts by fraud or misrepresentation.”

I would hold that the petitioners in this case have satisfied this requirement of setting up a meritorious defense. It is not necessary that the movant prove a meritorious defense; nor is he required to offer admissible evidence of such a defense. Rather, a motion to set aside a default judgment need only “ . . . allege facts which in law would constitute a defense to the cause of action asserted by the plaintiff, and must be supported by affidavits or other evidence proving prima facie that the defendant has such meritorious defense.” Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex.1966).

I fail to see what better defense a defendant in a fraud case can provide than to deny making the fraudulent statements attributed to him. The purpose of the requirement that the movant for a new trial set up a meritorious defense is “to prevent the reopening of cases to try out fictitious or unmeritorious defenses. But once these requirements are met, it is improper to try the defensive issues made by the motion or the pleadings.” Ivy v. Garrell, supra.

I would set aside the judgment entered in the petitioners’ absence, and remand the cause for trial on the merits.

      . “The trial court erred in awarding exemplary damages of $1500 to Plaintiffs Sterling and Jerrine McClanahan, $500 to Plaintiff Don Von, $2000 to Plaintiff Doris Langford, $750 to Plaintiff T. M. Golliheari, and $750 to Plaintiffs Doyle Whitehead and Ron Ambrose.”


author: MASSEY, Justice.

text:
    R. B. BRADLEY, Trustee, Appellant, v. Edwin A. APEL, Trustee, Appellee.
    No. 17699.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 12, 1975.
    Rehearing Denied Jan. 16, 1976.

      Buvens & Sellers, and W. Harold Sellers, Houston, for appellant.

      Thorne, Thorne & Robertson, Inc., and Kim R. Thorne, Grand Prairie, for appellee.
   OPINION

MASSEY, Justice.

Both principals in the cause were acting both individually and as trustees for others not identified. No issue is made relative thereto so for our purposes we may treat the suit filed as having been by Edwin A. Apel as plaintiff against R. B. Bradley. It was a suit by Apel to have judgment for the funds of Bradley put up as escrowed funds of one who had contracted to purchase real estate. The escrow agent, initially a party to the suit, was discharged pursuant to transfer of the amount in escrow (less the entitlement of said agent’s attorney to a part thereof as attorney’s fee) to the registry of the court.

Following trial before the court judgment was rendered for Apel as applied to the remaining escrowed funds and Bradley appealed.

Judgment reversed; judgment rendered that Apel take nothing by his suit against Bradley.

Reason for reversal lies in the fact that Apel failed to prove his case because he was unable to show that there was a date certain set for closing the real estate transaction at which there was breach of contract by Bradley, and that Apel either did or was ready to appear and then and there wholly fulfill those obligations incumbent upon him by his contract to sell, or to show that he was excused from making such proof by prior breach of the contract by Bradley. Another reason for reversal is because of Apel’s failure to prove that he ever had a title to convey to Bradley, as promised, or that he had the certain means of acquiring it to convey.

It is shown by the record that it was Apel who was trying to get Bradley to set a date for closing, with Bradley “dillydallying” and neither refusing to close nor committing himself to close at any particular time, until by the force of circumstances “time ran out” as applied to Apel’s supposed ability to perform as vendor of the real estate he had contracted to sell. Apel testified there was never a “closing date” set and because of that fact he had not delivered certain instruments to Bradley or the title company which he was obliged to deliver as a condition for performance of the contract by Bradley. We note that there were many things, including tender of a deed from himself to Bradley, which Apel was obliged to perform at or prior to the “closing”. These Apel never performed. There never was a “closing” nor a date certain for it to occur.

Apel, himself, never had merchantable title but merely a right to acquire title. Such right was by his own contract to purchase from Kerr Associates, the holder of the legal title. Nothing relative to the Kerr contract was mentioned in the Apel-Bradley contract, it being one which was in form absolute as one whereby Apel had (or would have) a title to convey.

Kerr Associates did serve notice of a time for closing or forfeiture as applied to Apel’s contract to purchase the land from them. The demand of Kerr Associates resulted in Apel’s release to them of rights held in the property, by contract to purchase, and also the earnest money deposited by him on that contract.

As applied to Apel’s contract to purchase from Kerr, Apel did not resist vendor Kerr’s claim to forfeit the contract and earnest money deposited thereon.

As applied to Bradley’s contract he, Bradley, did resist vendor Apel’s claim that he forfeit the earnest money deposited upon his contract to purchase from Apel. It was to obtain the earnest money that Apel sued.

To start at the beginning: January 14, 1974 Apel obtained a contract from Kerr Associates to sell him the land. He put up $10,000.00 earnest money, with proviso in the contract to purchase that he had 120 days from said date in which to exercise his right to purchase or forfeit such earnest money. By further provision he was afforded an additional 30 days upon increasing the amount of earnest money to $11,-000.00. Roughly this meant that Apel possessed the right to enforce his contract to purchase from Kerr Associates until June 13,1974, for he paid the $1,000.00 for the 30 day extension.

Thus it is evident for purpose of our discussion at this point that Apel might be treated as having been in position to enforce any proper specific performance by Bradley until date of June 13 but not afterward. The state of the record is such that Apel concedes that his ability to himself perform the contract with Bradley was terminated after such date. He released and surrendered the earnest money he had advanced upon his contract with Kerr. Thereafter he had, as a matter of fact and of law, rendered himself unable to demand specific performance by Bradley. He likewise could have possessed a cause of action against Bradley for breach of contract, but only if Bradley’s breach occurred on or pri- or to June 13; in other words only if there had been a prior breach by Bradley, for Apel had himself, in the eyes of the law, presented himself as in breach of the same contract after June 13, 1974.

Had there been a prior breach by Bradley?

Ordinarily time is not “of the essence” in a contract such as that between Apel and Bradley, though it may be made so by contract of the parties where they provide for the termination and forfeiture of rights of either, as if the purchase money is not paid at or within the agreed time. 58 Tex.Jur.2d 368, “Vendor and Purchaser”, Sec. 159, “(Time of Performance) In general”; 59 Tex.Jur.2d 97, “Vendor and Purchaser”, Sec. 551, “In general; Contractual forfeiture”. Although a clearly expressed provision for a forfeiture will be enforced as written, contracts will be so construed as not to produce a forfeiture if such a construction can be reasonably given. Page 99, “Vendor and Purchaser”, Sec. 553, “Construction of forfeiture provision”. Such a provision is for the benefit of the vendor. It gives him the right either to terminate the contract on default of the purchaser or as treating it as continuing in force and to insist on performance. Page 100, “Vendor and Purchaser”, in 59 Tex.Jur.2d, Sec. 554, “Right to claim forfeiture”; p. 430 in 58 Tex.Jur.2d, Sec. 214, “Tender of performance by vendor.” The right to claim a forfeiture by the purchaser’s default may be lost or waived by the vendor as by agreement or by conduct on the part of the vendor in affirmance of the contract and indicating that he regards it as still subsisting notwithstanding a default by the purchaser or by showing an intention not to treat time as being of the essence of the contract. Page 103, “Vendor and Purchaser”, in 59 Tex.Jur.2d at Sec. 555, “Loss or waiver of right”.

Continuing, from 59 Tex.Jur.2d on “Vendor and Purchaser”, see p. 106, See. 560, “Notice of forfeiture” where it is stated that in the absence of language plainly dispensing therewith the vendor must, as a rule, give notice of forfeiture or a notice of intention to forfeit within a specified time unless in the meantime the default is made good.

March 1,1974 was date of the Apel-Brad-ley contract. In paragraph No. 4 thereof was provided: “The date of Closing of the transaction contemplated by this Agreement (the “Closing Date”) shall be ninety (90) days after the date hereof, or such earlier date as Purchaser shall designate in a written notice delivered to Seller . .” Paragraph No. 5 thereof provided: “The Closing. On the Closing Date, at the offices of the Title Company, Seller agrees to deliver to Purchaser (a) a good and sufficient General Warranty Deed (the “Deed”) duly executed by Seller, granting and conveying unto Purchaser good and marketable title in fee simple absolute to the Property, and containing covenants of general warranty and subject to no liens . . . .” We omit further quotations since we do not deem them essential to disposition of the appeal in our view of the case.

We do not construe the contract to provide for forfeiture absolutely on May 29, 1974 (90 days from contract date of March 1, 1974); and even assuming that that was a contractual right of Apel to declare Bradley’s forfeiture at that time the evidence of record shows a waiver of the right by him. In other words the evidence of record is that never, prior to June 13, 1974, did Apel serve or attempt to serve any notice on Bradley or forfeiture or notice of intention to forfeit within any specified time. As Apel, himself, testified there was never a “closing date” set.

Furthermore the record made in the trial court affirmatively shows that Apel was not ready, willing and able to perform on his part of the contract on May 29,1974 (90 days from March 1, 1974 when the contract was made) at the offices of the Guardian Title Company in Fort Worth, Texas, where the contract provided the “closing” should occur. For substantial necessary action by Apel to be taken prior to or upon the “closing” he never made arrangement. Of course for him to do so as of May 29 was not necessary in our view, but the facts show that neither was it considered necessary by Apel.

It was a necessary prerequisite for any recovery by Apel that he make proof that he did have the certain means to acquire title to convey to Bradley, and this he failed to do as of May 29, 1974. (And on this we do not mean to hold that May 29 was the material date on which to apply the test of proof, for in view of the state of the record on “waiver” we do not believe that it was.)

In our opinion there was never a positive date set for performance or forfeiture by Bradley prior to the time Apel lost his right to maintain the cause by action by his own “constructive breach” of contract on June 13,1974 when he lost any power to deal with the title to the subject property. It is true that Bradley was shown to have been effectively avoiding necessity to either disavow the contract or to consent to either his forfeiture or agree to a “closing date” where events might establish that his rights under the contract were forfeit by his breach. The proof established only that Bradley’s evasive tactics were effective and successful until that material date had passed without Apel having set a “closing date”. Because there was an absence of such in this case there was no breach of contract by Bradley for there was never a disavowal by him of his contractual obligation. We do not mean that if it were otherwise Apel’s judgment would have been proper. Apel had additional burden of proof under circumstances of this case.

Even as applied to the question upon Apel’s ability to enforce specific performance or declare forfeiture as of May 29, 1974 or at any other time to and inclusive of June 13, 1974, we are of the opinion that Apel must lose his case by principles of law considered by the case of Brown v. Lee, 192 F. 817 (CCA, 5th Cir., 1911). That was a near identical case in that there the plaintiff, possessed of an agreement to receive the subject property from one Barefield, had contracted to sell the same to the defendant. Plaintiff was never in position to obtain title from Barefield (intended to be conveyed by plaintiff to defendant) because as a condition to obtaining it he was to pay Barefield $9,000.00 in the form of $3,000.00 cash and $6,000.00 in notes. Plaintiff testified that he had not the $3,000.00 cash wherewith to make the payment, but intended to use part of the money to be received from the defendant’s purchase of the property in order to do so. The court observed that on this the parties, plaintiff and defendant, had not contracted, and that therefore the efficient ability of the plaintiff to perform on his contract with the defendant must actually exist independent of the plaintiffs contract with Barefield as a condition of propriety for judgment for plaintiff. The holding of the court, supported by substantial cited authority, was that “Unless the vendor has the title to the land or the certain means of procuring it, he is not ready and able to perform a contract requiring him to convey it by warranty deed to the vendee, and he cannot, therefore, recover in an action for damages for a breach of the contract by the vendee, who withdraws from the contract.” The case is cited in 59 Tex.Jur.2d 144, “Vendor and Purchaser”, Sec. 608, “Necessity of performance by vendor.” See also 58 Tex. Jur.2d 229, “Vendor and Purchaser”, Sec. 29, “Property not owned at time of entering contract.”

Obviously lacking in Brown v. Lee was testimony that Barefield had committed himself to the plaintiff to deliver title to him antecedent to, or as part of the transaction consummation, when plaintiff and defendant would make' the exchange of money to plaintiff in exchange for transfer of title to defendant. Like proof is absent in this case. Apel failed to prove that he had the certain means at any time to acquire a title to deliver to Bradley.

We believe the principle of law declared in Brown v. Lee to be correct and controlling in this instance. By reason of its application the judgment rendered for Apel against Bradley must be reversed. There is also the additional reason for reversal in that even if Apel had proved his ability to perform no breach of contract on the part of Bradley prior to June 13, 1974, when Apel’s rights under the March 1,1974 contract ceased to exist, was proved.

Judgment is reversed. Judgment is rendered that Edwin A. Apel, Trustee, take nothing by the suit.


author: CORNELIUS, Justice.

text:
    Jackie Wayne RAULSTON, Appellant, v. Sandra Kay RAULSTON, Appellee.
    No. 8324.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 16, 1975.

      Pat Beadle, Beadle & Beadle, Clarksville, for appellant.
    Terry Bailey, Carthage, for appellee.
   CORNELIUS, Justice.

This is a divorce action. In a trial to the court, judgment was entered decreeing a divorce, dividing the community estate of the parties, and awarding appellee a personal judgment of reimbursement for certain community funds expended. Appellee was appointed Managing Conservator of her minor child, who was born prior to her marriage to appellant. On the basis of the trial court’s findings that appellant had voluntarily legitimated the child, appellant was ordered to pay twenty dollars ($20.00) per week child support. Appellant has assigned thirty points of error which will be grouped for discussion.

The first group of points complains of the trial court’s action in awarding appellee a personal judgment against appellant for the sum of $1,250.00 as reimbursement for her share of community funds expended during the marriage for the improvement of property in which the trial court found appellant had an “expectancy.” The evidence showed that appellant and appellee lived for three and one half years in the house which was owned by appellant’s brother, it having been “willed to him by his father.” Appellant and appellee paid no rent for their occupancy of the house. There was no allegation or proof that appellant made the expenditures in fraud of the wife. In fact they were made upon the joint consent of appellant and appellee. It was undisputed that appellant had no present title in the dwelling or the land upon which it was situated.

The trial court has broad discretion to make a fair division of the property of the spouses and to adjust their respective equities, including the power to award the wife a personal judgment of reimbursement for community funds expended to enhance the husband’s separate property or expended in fraud of the wife. Smith v. Smith, 187 S.W.2d 116 (Tex.Civ.App. Fort Worth 1945, no writ); Pride v. Pride, 318 S.W.2d 715 (Tex.Civ.App. Dallas 1958, no writ). Since there was no allegation or evidence that these expenditures were fraudulent, the award to appellee must be justified upon the theory that the funds were expended to enhance appellant’s separate property. Apparently, the trial court concluded that appellant had a right of inherit-anee or a possibility of acquiring an interest in his brother’s property in the future and awarded reimbursement to appellee on the basis of such “expectancy.” It is settled however, that a mere hope of inheritance or possibility of acquiring a title in the future is not such a legal expectancy as will amount to a present right or title in property. Clark v. Gauntt, 138 Tex. 558, 161 S.W.2d 270 (Tex.Com.App.1942, opinion adopted); Dodson v. Kuykendall, 127 S.W.2d 348 (Tex.Civ.App. El Paso 1939, writ dism’d jdgmt cor.); Parrish v. Parrish, 280 S.W. 901 (Tex.Civ.App. Fort Worth 1926, no writ). Consequently, in the absence of any allegation or evidence of fraud, the action of the trial court in awarding appellee reimbursement for expenditures to improve property in which the appellant had no title or legal right was error unless the reimbursement would have been proper as a part of the general division of property and adjustment of equities under the trial court’s broad discretionary powers. Considering the modest amount of property here and the other aspects of the court’s division, we conclude that the award of such reimbursement, in the absence of legal grounds therefor, was error. Points of error Nos. 1, 2, 3, and 26 are therefore sustained.

The next group of points complains of the trial court’s judgment that appellant voluntarily legitimated appellee’s child. Appellee contends that the court’s action in that regard was authorized by the provisions of either Article 42, Tex.Prob.Code Ann. or Sections 13.01 et seq., Tex.Family Code Ann. The trial court found that appellant legitimated the child by affidavit, although it was proven and the court found that appellant was not the biological father of the child.

Article 42, Tex.Prob.Code Ann. provides in part as follows:

“Where a man, having by a woman a child or children shall afterwards intermarry with such woman, such child or children shall thereby be legitimated

It is clear from the express language of Article 42 and the decisions construing it that such article applies only when the man who marries the mother of the child is the child’s natural father. Pilgrim v. Griffin, 237 S.W.2d 448 (Tex.Civ.App. El Paso 1950, writ ref’d n. r. e.); Robinson v. Seales, 243 S.W. 694 (Tex.Civ.App. Galveston 1922, no writ). Thus, the trial court’s finding of legitimation here must stand, if at all, on voluntary legitimation under the provisions of Chapter 13 of Title 2 of the Family Code. Section 13.01 of that title provides for a judicial decree to legitimate an illegitimate child based upon a “statement of paternity” executed by the child’s “father.” Suit for such a decree may be brought by the father, or it may be brought by the mother or State Department of Public Welfare if the statement of paternity has been filed with the Department of Public Welfare. Section 13.02 sets forth certain facts which the statement of paternity must contain. Among those are the fact that the father and mother were not married to each other at the conception of the child or at any subsequent time and that the child is not the legitimate child of another man. Section 13.03 provides that a statement of paternity executed as provided in Section 13.-02 is “prima facie evidence” that the child is the child of the person making the affidavit, and that “in the absence of controverting evidence” the statement of paternity is sufficient for the court to enter a decree establishing the signer’s paternity of the child. Despite Section 13.02’s specific requirements as to the contents of the statement, Section 13.04 provides that a statement of paternity executed prior to January 1,1974, (as was the one claimed to have been executed here) is valid even though it is not executed as provided in Section 13.02 and even though it is not filed with the court or the State Department of Public Welfare. Even so, it is clear that such an affidavit must contain an acknowledgment of paternity.

Assuming that appellee’s pleadings here would qualify as “a suit for a decree establishing the child as the legitimate child of the person executing the statement” as mentioned in Section 13.01(b), we are faced at the outset with the question whether a “statement of paternity” is of itself effective to render a child the legitimate child of the signer of such statement even though it is proven that such signer is not the natural father of the child.

Article 42 of the Probate Code and Chapter 13 of the Family Code were not intended as substitutes for adoption, but rather were intended to enable a father to legitimate his own natural offspring who would otherwise be illegitimate. Article 42 of the Probate Code governs the situation when the natural father subsequently marries the natural mother. But the enactment of that statute left a hiatus when the child’s natural father did not marry the mother but nevertheless still desired to legitimate his child. Chapter 13 of the Family Code fills this hiatus, in addition to providing remedies for the natural father which were required by recent decisions of the United States Supreme Court, as it provides that when the natural parents do not marry, the father may still legitimate his child by filing the prescribed statement of paternity. But it seems to be the intent of the statutes that natural fatherhood would be the basis of legitimation in either event. This construction is in accordance with the majority rule in the United States, and we think it is confirmed by the wording of the statutes themselves. See Annotation, 33 A.L.R.2d 705, 751; 10 Am.Jur.2d, Bastards, Sec. 49, p. 879; 10 C.J.S. Bastards § 11, p. 56; Edgar v. Dickens, 230 Ark. 7, 320 S.W.2d 761 (1959); In re Flood’s Estate, 217 Cal. 763, 21 P.2d 579 (1933); Tex.Tech.L.Rev., Vol. 5, No. 2, p. 415, Parent-Child Relationship. The very term “legitimation” refers to the existence of a blood relation, whereas the term “adoption” properly refers to a legal relation created between persons who are strangers in blood. Colpitt v. Cheatham, 267 P.2d 1003 (Sup.Ct. Oklahoma 1954). Another section of the Family Code (12.02) provides that a child is the legitimate child of a man if the man’s paternity is established under the provisions of Chapter 13. The statement of paternity required in Chapter 13 is not the adjudication of parentage; it is but evidence upon which the court is permitted to make the adjudication. Otherwise, why do the statutes provide that the statement of paternity is “prima facie evidence” and that “in the absence of controverting evidence ” the statement shall be sufficient for the court to enter a decree establishing the signer's paternity of the child ? If a man not the father of a child may be held to have “legitimated him” by signing a statement of paternity which is proven to be false, the above mentioned provisions of the statutes are rendered meaningless. The only reasonable construction of the statutes which harmonizes all of their parts and gives effect to all of their provisions is that only the natural father may legitimate the child. A statement of paternity is prima facie evidence that the person signing the statement is in fact the natural father, and standing alone it is sufficient for legitimation. In the face of controverting evidence however, it devolves upon the court or trier of fact to determine if such person is the natural father. If he is found to be the natural father, his acknowledgment of paternity has effectively legitimated the child. If he is found not to be the child’s father, the case for legitimation fails and adoption is the proper remedy-

In the instant case it was proven and the trial court found that appellant was not the natural father of appellee’s child. In the face of those facts it was error for the trial court to conclude that appellant had legitimated the child. Points of error Nos. 7, 8, 13, 14, 16, 17, 18, 19, 23, 24 are therefore sustained.

Moreover, even if a statement of paternity would have been effective in the context of this case, there is insufficient evidence to support the trial court’s finding that appellant executed such a statement. There was no direct proof that appellant executed an acknowledgment of paternity. No affidavit or statement of paternity was introduced in evidence. The testimony showed only that appellant, having been informed by the County Clerk that he and appellee “could change the name on the birth certificate” if they wanted to, appeared before the Clerk, “signed something,” paid the Clerk seven dollars ($7.00) and got the birth certificate “changed.” The birth certificate was not introduced in evidence. Appellee argues that the birth certificate could only be changed by an affidavit acknowledging paternity, and since appellant admitted that he signed “something” and got the certificate changed the trial court was authorized to assume that he acknowledged paternity. That assumption is not the only valid conclusion to be reached, however, as the statutes provide several instances in which birth certificates may be changed, not all of which involve a legitimation. Bee Tex.Rev. Civ.Stat.Ann. art. 4477, Rule 47a. Although by indulging in successive inferences and by severely stretching the rule of circumstantial evidence, it might be said that there was some evidence that appellant acknowledged paternity or assumed an obligation to support the child, we find that it is factually insufficient to support the judgment. A matter with such far reaching consequences should not rest upon speculation or such meager circumstances, especially when proof of the true facts can easily be made. If appellant signed an affidavit it would have been, and will be on a new trial, a simple matter to secure it or a certified copy and introduce it into evidence, thus removing all doubts as to its contents and purpose. But appellee insists that since appellant did not deny under oath his execution of the affidavit she pleaded, it was not necessary that she prove its contents. Ap-pellee’s petition simply alleged that appellant had “adopted” the child by affidavit. The contents of the affidavit were not set forth in the pleadings nor were they introduced in evidence. Rule 93, Tex.R.Civ.P. provides that on the failure to deny under oath the execution of a written instrument alleged by the pleadings, “the instrument shall be received in evidence as fully proved.” That rule only applies to the execution of a written instrument, dispensing with the need of proving the authenticity of its execution when not denied under oath. It does not dispense with proof of the contents of the instrument. Thompson v. Republic Acceptance Corporation, 388 S.W.2d 404 (Tex.1965); Webb v. Reynolds, 207 S.W. 914 (Tex.Com.App.1919, opinion adopted). Appellant’s points of error Nos. 5 and 11 are therefore sustained.

Appellant’s remaining points complain of the trial court’s general division of the property and a reimbursement to appellee of $450.00 representing one half of an income tax refund which, after the parties separated, appellant received and expended. We have carefully reviewed the court’s findings and the evidence upon which they are based and have concluded that these points are without merit. Points of error Nos. 2, 7, 28, 29 and 30 are therefore overruled as are appellant’s other points not otherwise disposed of.

For the errors noted, the judgment of the trial court is reversed and the cause is remanded for a new trial.

      . See Tex.Tech.L.Rev., Vol. 5, No. 2, p. 418; Voluntary Legitimation, and p. 613, Ernest E. Smith, Illegitimate Children and Their Fathers: Some Problems With Title 2.


author: NYE, Chief Justice.

text:
    RANGEMASTER, INC., Appellant, v. William Ray ABEL, Appellee.
    No. 1050.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 17, 1975.
    Rehearing Denied Jan. 15, 1976.
    William S. Cox, Houston, L. J. Lacina, Jr., Brenham, for appellant.
    Sidney Levine, Conner & Odom, Sealy, for appellee.
   OPINION

NYE, Chief Justice.

This is an action brought by plaintiff William Ray Abel for an alleged commission due under an oral contract of employment with defendant Rangemaster, Inc. The case was tried before a jury which found issues favorable to the plaintiff. The trial court then entered judgment for plaintiff in accordance with the jury’s verdict. Prom that judgment defendant has duly perfected its appeal to this Court.

Sometime around the 15th of April of 1974, Leon Schwartz, the general manager of defendant’s Brenham Store, contacted plaintiff by telephone concerning a job opening as assistant manager with defendant’s store. In this initial conversation over the telephone, Mr. Schwartz indicated that the job of assistant manager would pay $600.00 per month plus a commission out of the western wear store. The defendant corporation has several stores, with the Brenham store being the subject matter of this case. The Brenham store’s operation includes sale of dry and liquid feed and western wear. Plaintiff did not immediately accept the job but agreed to meet further with Schwartz and defendant’s president, Mr. Buchanan, the following week at the Brenham Store. At that time, plaintiff was then employed by Swift Chemical Company in Hockley County in the capacity of operational manager.

The ensuing meeting was attended by Schwartz, Buchanan and plaintiff. Plaintiff’s duties as assistant manager were discussed by both Mr. Buchanan and Mr. Schwartz; these duties being to wait on customers, to help keep the books, and to make deliveries of liquid feed, fertilizer and feed. In discussing the salary, plaintiff testified Buchanan told him it would be $600.00 per month plus a commission. It is undisputed that the salary of $600.00 was set and agreed upon.

Several days after the meeting, plaintiff called Buchanan and accepted the job. Plaintiff then gave his previous employer two weeks notice and after completing such time, began his employment with defendant on April 29, 1974.

Plaintiff received his stated salary of $600.00 per month, but never received any amount as commissions on the sales of the products from the Brenham Store. During this period, it was undisputed that plaintiff performed his duties in a satisfactory manner. Plaintiff testified that he asked Buchanan about the commission several times. Buchanan replied that he would get it straight or that his C.P.A. had not worked on it yet. Two and a half months later, plaintiff resigned. After terminating his employment with defendant, plaintiff, by letter, requested that his commission be paid. Defendant made no response or reply to plaintiff’s demand.

Plaintiff then brought suit against defendant for the amount of his commission due, plus attorney’s fees. Defendant answered denying that it was indebted to the plaintiff or that any agreement was ever entered into between defendant and plaintiff in regard to paying plaintiff a commission.

The jury in answer to the special issues found that: 1) there was an agreement between Rangemaster, Inc. (defendant) and William Ray Abel (plaintiff) that Range-master, Inc. would pay to Abel, in return for his services, a commission of one percent (1%) of gross sales of the Brenham Store of Rangemaster, Inc.; 2) the amount of $630.76 should be paid to Abel as a result of Rangemaster, Inc. agreeing to pay Abel a commission of one percent (1%) of gross sales from the Brenham Store of Range-master, Inc.; 3) Abel presented his claim for services rendered for more than thirty (30) days before filing suit; and 4) that reasonable attorney’s fees to be paid for the collection of the amount owed to Abel by Rangemaster, Inc. was $350.00.

The trial court entered judgment for plaintiff in accordance with the jury’s answers to the special issues.

The defendant on appeal asserts four points of error by the trial court. In its first two points, it asserts that there was no evidence in the record to support the jury’s finding that defendant agreed to pay plaintiff a commission of one percent (1%) of gross sales of the Brenham Store and that the jury’s answer was so against the overwhelming preponderance of the evidence as to be manifestly unjust. In its points three and four, defendant asserts that there was no evidence in the record to support the jury’s finding that the sum of $630.76 should be paid to plaintiff as a result of the defendant’s agreement to pay plaintiff a one percent (1%) commission of gross sales from the Brenham Store and that the jury’s answer was so against the overwhelming preponderance of the evidence as to be manifestly unjust and should have been disregarded.

When considering defendant’s no evidence points, we are required to review the evidence in the light most favorable to the jury’s verdict and disregard all evidence and inferences to the contrary. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). In considering defendant’s “against the great weight” points, we are required and do consider all the evidence. In re King’s Estate, supra.

Plaintiff testified that initially he was offered the job by Mr. Schwartz, who was the store manager. He stated that the plaintiff was to receive a salary of $600.00, plus a commission. The plaintiff testified that the President of the defendant company was a Mr. Buchanan. He stated that Buchanan told him that he would be paid $600.00 per month, plus a commission of one percent (1%) for all that was sold in the store. The proof was that the sales of the store during the time that the plaintiff worked for the defendant company was $63,076.29. The jury’s answer to special issue number 2 as to the one percent (1%) commission due the plaintiff was $630.76. Appellant’s points of error 1 and 3 concerning no evidence are overruled.

Mr. Buchanan, the President of the appellant store company, offered the plaintiff the job. Plaintiff testified that Mr. Buchanan offered to pay him $600.00 per month, plus a commission of one percent (1%) of all of the sales of the store. Although Mr. Schwartz, the store manager, admitted that plaintiff was to receive a commission, he stated that he did not know the exact amount of the commission to be paid to plaintiff. On cross examination, he could not deny that plaintiff was to receive the one percent (1%) commission. Mr. Buchanan, the store President, did not refute plaintiff’s testimony. The appellant argues that the plaintiff could not have received the one percent (1%) commission as assistant store manager since the store manager who received the same salary as the plaintiff ($600.00 per month) only received a one percent (1%) commission on all of the sales of goods over $8,000.00. However, the evidence showed that the store manager, Schwartz, had only worked for a few weeks prior to plaintiff’s employment and had only a high school education. The plaintiff on the other hand had graduated from college with a B.S. degree and had specialized in agronomy. We have reviewed and weighed all of the evidence and do not conclude that such evidence in support of the verdict was so against the great weight and preponderance of the evidence so as to be manifestly unjust. The appellant’s points of error 2 and 4 are overruled.

The judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    Mary A. STUTTS, Appellant, v. Florine STOVALL et al., Appellees.
    No. 15560.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 17, 1975.

      Dan McManus, San Antonio, for appellant.
    Remy, Schiller & Bayern, San Antonio, for appellees.
   PER CURIAM.

Appellant has perfected her appeal from a partial summary judgment granted appel-lees by the Probate Court of Bexar County. A question is presented as to our jurisdiction to hear this appeal.

Appellant is the widow and an heir of James A. Stutts, deceased. Appellees, Florine Stovall, Beryl Smith, Harold B. Turner, Yvonne Gregory, Anna Grace Spruce and Henry W. Martin, are heirs under the will of deceased which has been admitted to probate. A dispute has arisen over whether appellant was put to an election to take under the will and if so, as to whether she had made such an election. Appellant made a motion for a partial summary judgment whereby she sought a declaration that she was not presented with an election under the will. Appellees subsequently filed their own motion for a partial summary judgment and sought a declaration that appellant had elected not to take under the will.

On October 29, 1975, an order was signed which denied appellant’s motion and granted appellees’ motion in part. The Probate Court determined that appellant was put to an election either to take under the will or to assert her rights as a widow. The Probate Court held, however, that there was a fact issue as to whether appellant had exercised such election. Appellant appealed from the order which denied her motion for partial summary judgment and granted, in part, appellees’ motion for partial summary judgment.

The authority to appeal from an order of the Probate Court is now granted exclusively by § 5(e) of the Texas Probate Code, Tex.Rev.Civ.Stat.Ann., as amended effective June 21, 1975, which provides: “All final orders of any court exercising original probate jurisdiction shall be appealable to the courts of (civil) appeals.” The 1975 revision of the Probate Court also amended § 28 by deleting a broader right of appeal from the Code. This revision was adopted subsequent to the decision in Cherry v. Reed, 512 S.W.2d 705 (Tex.Civ.App., Houston (1st) 1974, writ ref’d n. r. e.). It apparently was passed by the legislature to reconcile the somewhat inconsistent language between § 5 and § 28 of the Code.

It is obvious that the Probate Court’s order of October 29, 1975, is not a “final order” as provided in § 5(e) of the Probate Code. The order expressly provides that there is a fact issue remaining as to whether appellant had made an election not to take under the .will. Thus the order is an interlocutory order and is not reviewable at this time. Wilcox v. St. Mary’s University of San Antonio, Inc., 501 S.W.2d 875 (Tex.1973); Hall v. City of Austin, 450 S.W.2d 836 (Tex.1970).

The appeal is dismissed.

      . The following provision was deleted from § 28: “Any person who may consider himself aggrieved by any decision, order, decree, or judgment of the court shall have the right to appeal therefrom to the district court of the county.”


author: McKAY, Justice. MOORE, Justice

text:
    Mildred WALLACE, Independent Executrix of the Estate of Margaret Irene Turriff, Deceased, Appellant, v. James A. TURRIFF, Jr. and Evelyn Mills, Appellees.
    No. 875.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 18, 1975.
    Rehearing Denied Jan. 22, 1976.
    James K. Peden, III, Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellant.
    Stephen A. Brutsché, Geary, Brice, Barron & Stahl, Dallas, for appellees.
   McKAY, Justice.

This is a will case wherein James A. Turriff, Jr. and Evelyn Mills, appellees, brought suit against the Executor of the Estate of Margaret Irene Turriff, Deceased, their step-mother, praying that a joint and mutual will executed by their father, James A. Turriff, Sr., and Margaret Irene Turriff be specifically enforced against the estate of Margaret Irene Turriff, in accordance with the agreement of the parties, that a trust be imposed upon the assets of the estate in favor of appellees and that the agreement be carried out in all respects according to its contents and provisions. The trial court rendered judgment for ap-pellees and made certain findings; and appellant, as executor, brings this appeal.

James A. Turriff, Jr. and Evelyn Mills are the children of James A. Turriff from a marriage prior to his marriage to Margaret Irene Turriff. Appellees were adults at the time James A. Turriff and Margaret Irene Turriff married, and they were never adopted by Margaret Irene Turriff. Margaret Irene Turriff had no children.

On June 24, 1947, James A. Turriff and Margaret Irene Turriff executed a joint and mutual will which provided in Part I, paragraph one:

“It is our will and desire, and the will and desire of each of us, that the survivor of us, James A. Turriff or Margaret Irene Turriff, as the case may be, shall have all of the estate of every character and description, real, personal, or mixed, which either or both of us may own or have an interest in at the time of the death of the one of us dying first, hereby intending to include both community and separate property.”

After providing that the survivor should have the right to occupy any property thereafter acquired as homestead, and have the right to sell it, the will further provided in Part I, paragraph three:

“For the considerations and benefits herein derived by the survivor, we and each of us agree that at the death of the survivor of either of us all the property, both real and personal, that the survivor may die seized and possessed of, will go to and become the property of Evelyn Bernice Mills, wife of Sidney Mills, and her brother, James A. Turriff, Jr. Said property shall be given share and share alike.”

James A. Turriff died on February 4, 1950, and Margaret Turriff probated the joint and mutual will. She became independent executrix of the estate and took possession of all of the property of the estate. The value of the estate was listed in the inventory and appraisement at $5,000.00.

Margaret Turriff executed a holographic will on May 24, 1973, and designated Mildred Wallace, appellant, as independent executrix, and upon application of Mildred Wallace such will was admitted to probate as the Last Will and Testament of Margaret Irene Turriff. In the holographic will specific bequests of $2,500.00 each were made to James A. Turriff, Jr. and Evelyn Turriff Mills. Other portions of the will distribute the remainder of the estate, which consisted of savings accounts, certificates of deposit and personal effects, to her brothers and sisters, and their spouses and their children and grandchildren — the nieces, nephews, great-nieces and great-nephews of Margaret Irene Turriff.

Five thousand ($5,000.00) dollars in cash of the assets of the Estate of Margaret Irene Turriff is attributable to the property owned by either Margaret Irene Turriff or James A. Turriff, or both of them, at the time of the death of James A. Turriff on February 4, 1950. The remainder of her estate consists of property independently acquired by her after the death of her husband, two-thirds of which was derived from real estate devised to Margaret Turriff by a friend.

Appellant brings seven points of error which, taken together, present only one question: Did the joint and mutual will of James A. Turriff and Margaret Irene Tur-riff attach to and include property acquired by Margaret Irene Turriff after the death of James A. Turriff?

It is not questioned that the will was a joint and mutual will and was contractual.

Appellant relies principally upon the case of Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588 (1955) in which Murphy and his wife executed a joint and mutual will in which paragraph one read as follows:

“It is our will and desire that the survivor of us, B. H. Murphy or Annie E. Murphy, as the case may be, shall, with the rights and authority below given, have all the estate of every description, real, personal or mixed, which either or both of us may own at our death, to be used, enjoyed, occupied and conveyed by such survivor for and during his or her life time, as the case may be, and that upon the death of such survivor any of such estate then remaining shall be divided among the persons following and in the following manner, and subject to all the conditions and limitations hereinafter to be named, to wit: ...” (Emphasis added.)

The Murphy v. Slaton opinion laid down the general rule:

“While the question is not free from difficulty, and we recognize that the makers of a joint and mutual will, or of mutual wills, have the right and power to provide that all of the property owned by the survivor at his death shall pass under and be bound by the terms of their will, we do not believe such effect should be given to mutual wills unless the intention to do so is set forth in the will by very plain, specific and unambiguous language. In the absence of such clearly expressed intention we feel that the better reasoning supports the rule that after-acquired property owned by the survivor in his or her individual right does not pass . . ”

The court held that after-acquired property was not covered or included in the language of the will in Murphy because the language “could only be with reference to the estate owned at the time of the death of the first one to die,” and “It is only at this time that there will be a ‘survivor of us’ who can take ‘all the estate’ and who can ‘use, enjoy, occupy or convey’ during his or her lifetime.” The court found no language evidencing an intention to dispose of the estate owned by the survivor at death.

Appellees cite and rely upon Weidner v. Crowther, 157 Tex. 240, 301 S.W.2d 621 (1957). The joint will in Weidner contained the following provisions:

“Second: We mutually will, direct and devise, that after the death of either of us, all our property and estate, real, personal or mixed, and wether deemed common or separate estate, shall be inherited by and shall at once pass into the unrestricted possession of the last survivor of either of us in fee simple.
“Third: We hereby further will and direct that after the death of the last survivor of us all our property and estate, real, personal or mixed, common or separate, shall be inherited and divided equally, share and share alike, among our three children, to-viz.: . .

Chief Justice Calvert, writing for the court in Weidner, analyzed and distinguished Murphy v. Slaton, supra. The We-idner opinion says that paragraphs second and third which deal with “our property” should be interpreted as though each party was making a separate disposition of his or her property only, and when these provisions are so interpreted, by the second paragraph each intended to make disposition of his or her property if he or she was the first to die with fee simple title going to the survivor, and by paragraph third, each undertook to dispose of his or her property if he or she was the last to die. The court then said:

“When the will is thus interpreted the contract between the parties, incorporated in and evidenced by the will, appears clearly to have been that if the first to die would devise to the survivor the fee simple title to all property, separate and community, owned at death, the survivor would devise in fee simple to the three children equally all property, separate and community, owned at death. In carrying that contract into effect each of the parties expressed in the will in ‘plain, specific and unambiguous language’ the intention that all property, separate and community, owned by the survivor at death, which necessarily included after-acquired property, should be inherited by the three children in equal shares . . ” (Emphasis added.)

In the instant case the Turriffs made a contract almost identical in substance to that made by the Weidners. In Part I, paragraph one, the Turriffs agreed that the survivor should have all of the estate of the first to die, real, personal or mixed, separate or community; in Part II, paragraph three, they agreed that at the death of the survivor, “all of the property, both real and personal, that the survivor may die seized and possessed of, will go to and become the property of Evelyn Bernice Mills . and . . . James A. Turriff, Jr.” (Emphasis added.)

We believe the language of the will in the instant case is distinguishable from that in Murphy v. Slaton, supra, and Harrell v. Hickman, 147 Tex. 936, 215 S.W.2d 876 (1948). We also believe that our view of this case is consistent with the rule laid down in Murphy v. Slaton, supra, and restated in Weidner v. Crowther, supra, that “makers of mutual wills can make them operative on all property owned at the death of the survivor by expressing an intention to do so in ‘plain, specific and unambiguous language’ ”. Thrash v. Boggs, 346 S.W.2d 660 (Tex.Civ.App., Ft. Worth, 1961, writ ref’d, n. r. e.).

We agree with the findings of the trial court that the language of the Turriff will is contractual and that it was the intention of the parties that all property owned at the death of the survivor should go to ap-pellees. There is no language referring to the estate as it existed at the death of Turriff as being the only property to be received by appellees at the death of the survivor. We disagree with appellant’s contention that “the” before the word “property” refers to or limits the estate to only that which existed at the time of the first to die, and is only that which is to be passed to appellees. It appears that “the” before the word “property” refers to what follows: “the property, both real and personal, that the survivor may die seized and possessed of”. (Emphasis added.) There is no ambiguity in the context so used.

We are of the opinion and so hold that the language of the joint and mutual will expresses a plain, specific and unambiguous intention that all property of the survivor, including after-acquired property, passes under the joint and mutual will executed by the Turriffs. All of appellant’s points of error are overruled.

Judgment of the trial court is affirmed.

MOORE, Justice

(dissenting).

I dissent. The contractual will made the basis of this suit, when reduced to its simplest terms, shows that the testators agreed that upon the death of the first to die all community and separate property owned by the deceased was to pass to the survivor, and upon the death of the survivor “the property” was to pass to Bernice Mills and James A. Turriff, Jr. The question is: What property did the parties intend to bequeath when they referred to it as “the” property? The word “the” is a word of limitation. It is a definitive word and when used before nouns it has a specifying and particularizing effect as opposed to the indefinite or general effect. It determines what particular thing is meant; that is, what particular thing we are to assume to be meant. 41A Words and Phrases, p. 76 et seq. (citing cases). Webster says the article “the” is “used as a function word to indicate that a following noun * * * refers to * * * something previously mentioned or clearly understood from the context or the situation.” Webster’s Seventh New Collegiate Dictionary. In the instant case the parties agreed that upon the death of the survivor “the” property would pass to Bernice Mills and James A. Turriff, Jr. At the time the testators bequeathed “the” property, the only specific property existing at that time was the property they had theretofore bequeathed to each other in a previous paragraph of the will. Certainly, the parties could not have intended to bequeath after acquired property because, at that time, no such property existed. Therefore, it seems obvious that when the parties bequeathed “the property” they must have intended to limit the bequest to the specific property they had theretofore bequeathed to each other. The will does not say that “all property” owned by the survivor was to pass to the devisees nor does the language used by the testators refer to property in general terms. On the contrary the testators limited the bequest to “the” property which could only mean they had in mind certain specific property. In this connection it is significant to note that while the parties provided all property, community as well as separate, was given to the survivor, they did not provide that separate property acquired by the survivor was to pass to the named devisees. Consequently, I cannot agree with the conclusion reached by the majority holding that by the use of the term “the property” the testators intended that the bequeathed property together with all property which might thereafter be acquired by the survivor was to pass to the named devisees.

In any event, the language used by the testators fails to satisfy the requirement laid down by Murphy v. Slaton, supra, requiring that in order for after acquired property of the survivor to pass under the will, the intention to do so must be set forth in the will in very plain, specific and unambiguous language. In the absence of such clearly expressed intention, I feel the better reasoning supports the rule that after acquired property owned by the survivor in his or her own individual right does not pass.

Accordingly, I would reverse and render judgment in favor of the appellant.

      . “1. The joint and mutual will executed by James Turriff, Sr. and Margaret Irene Tur-riff, Deceased, on June 24, 1947, is contractual;
      “2. Under the terms of such contract, Plaintiffs herein are entitled to all property owned by Margaret Irene Turriff, Deceased, at the time of her death on May 28, 1974;
      “3. The holographic will executed by Margaret Irene Turriff, Deceased, on May 24, 1973, is repugnant to the said joint and Will, (sic) and the bequests contained therein should be given no effect;
      “4. A constructive trust should be imposed upon all of the assets of Margaret Irene Turriff, Deceased, for the benefit of Plaintiffs;
      “5. After the payment of all debts and funeral expenses of Margaret Irene Turriff, Deceased, as well as the payment of all proper expenses of administration, the Defendant, MILDRED WALLACE, Independent Executrix with bond of the Estate of Margaret Irene Turriff, Deceased, should be compelled to transfer to the possession of Plaintiffs herein all personal property remaining in said Estate, in equal shares;”


author: COULSON, Justice.

text:
    EXECUTORS OF the ESTATE OF Hope Pierce TARTT, Deceased, Appellant, v. Lew W. HARPOLD, Appellee.
    No. 1232.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Dec. 24, 1975.
    Rehearing Denied Jan. 14, 1976.

      Ben H. Rice, III, Vinson, Elkins, Searls, Connally & Smith, Houston, Gaines Baldwin, Abney & Baldwin, Marshall, for appellant.
    Lew W. Harpold, Howard C. Rainey, III, George M. Clifton, Hofheinz & Harpold, Isaac C. Satterwhite, Houston, for appellee.
   COULSON, Justice.

This is an appeal from a decree of the Probate Court of Harris County ordering the executors of the Estate of Hope Pierce Tartt, Deceased, to pay to Lew W. Harpold, attorney ad litem for the unknown heirs, his expenses and fees for his professional services. The issue is whether the probate court had jurisdiction to order the executors to pay the expenses and fees of the attorney ad litem (pending the final disposition on appeal of a consolidated suit to construe the will and to determine heirship).

Hope Pierce Tartt died on July 26, 1961 at the age of ninety. Her holographic Will, dated July, 1947, was admitted to probate by decree on January 9,1962. An action to declare heirship was filed in the probate court on April 3, 1964. The unknown heirs were cited by publication. On March 26, 1965, the probate court appointed Lew W. Harpold attorney for the unknown heirs. On January 11, 1973, the probate court entered an order declaring the heirs of Hope Pierce Tartt and their respective shares and interest in her estate. The court held that none of the real or personal property of Mrs. Tartt passed to the scholarship fund referred to in the Will but that the property passed to her heirs at law under the laws of descent and distribution. The heirs at law, the executors, and the Attorney General of Texas appealed the probate court’s order to the District Court of Harris County.

On November 29, 1961, suit was brought in the District Court of Harris County to construe the Will. The unknown heirs were cited by publication. Lew W. Harpold was appointed by the district court as attorney for the unknown heirs in the suit to construe the Will. In February, 1965, an order was entered abating the suit to construe the Will pending disposition of the estate as determined by the probate court.

On May 7,1973, the district court entered an order consolidating the suit to construe the Will with the appeals from the probate court’s heirship determination. Both sides filed motions for summary judgment. On May 28,1974, the district court rendered its final judgment granting the motions for summary judgment of the executors and the Attorney General of the State of Texas and denying the motions for summary judgment of the heirs and unknown heirs. The district court held that it was unnecessary to determine Mrs. Tartt’s heirs at law and the share of each heir in any intestate property because all of her property passed at death under the Will to the scholarship fund, a charitable trust. The heirs and unknown heirs excepted to the judgment of the district court and appealed to this court which affirmed the judgment of the district court. Eldridge v. Marshall National Bank, 527 S.W.2d 222 (Tex.Civ.App., Houston [14th Dist.] 1975, writ filed). The issues comprising that appeal are now pending before the Supreme Court of Texas.

Lew W. Harpold, as attorney ad litem, filed in the probate court his application for payment of his fees of $4,380.00 and expenses of $348.60 for the period of January 23, 1974 through March 18, 1975. Following a hearing, the probate court, on April 17, 1975, entered an order approving the expenses and fees and ordering the executors to pay Lew W. Harpold, attorney ad litem, the total amount of $4,728.60. The executors appeal.

It is contended by the executors that the probate court had no jurisdiction to award the expenses and fees to the attorney ad litem. The executors argue that the appeal to the district court of the action to determine the heirship of Mrs. Tartt divested the probate court of any present jurisdiction over the matter. We disagree.

Tex.R.Civ.P. 244 provides that the court appointing the attorney ad litem “shall allow such attorney a reasonable fee for his services.” It is the attorney ad litem’s duty to “defend the rights of his involuntary client with the same vigor and astuteness he would employ in the defense of clients who had expressly employed him for such purpose.” Madero v. Calzado, 281 S.W. 328 (Tex.Civ.App., San Antonio 1926, writ dism’d). The attorney ad litem owes the same duty to his client as the attorneys representing the executors owe to their clients. The attorney ad litem should exhaust all remedies available to his client. The attorney ad litem may be called upon to represent his client on appeal and should do so when it is in the interest of his client.

Although the district court’s trial of the heirship action was a trial de novo, that court’s jurisdiction was “appellate only.” Dunaway v. Easter, 133 Tex. 309, 129 S.W.2d 286 (1939). As attorney ad litem for the unknown heirs, Harpold had the duty to represent his clients on the appeal from the probate court’s declaration of heirship. He performed that duty in the district court, in the court of civil appeals, and continues to do so in the supreme court.

The probate court had the duty to award Harpold reasonable attorney’s fees for his services as its appointed attorney ad litem. Jurisdiction was retained by the probate court over the estate under the court’s continuing administration. Inherent in the probate court’s jurisdiction was the power to order the payment of reasonable expenses and fees out of the estate for the attorney ad litem appointed by the probate court. An obligation is imposed upon a court to pay reasonable fees for the attorney ad litem it appoints under Tex.R.Civ.P. 244, which in and of itself confers jurisdiction upon a court acting under its aegis.

The attorney ad litem’s expenses and fees, incurred in the probate court and in the district court, had previously been paid without objection by the executors pursuant to orders of the probate court.

The attorney ad litem is an officer of the court. He is to be paid a reasonable fee for the services which he renders. Such fees are assessed as costs of suit. Just as other costs of suit may be assessed from time to time as the suit progresses, so may the fees and expenses of the attorney ad litem be assessed and paid from time to time during the litigation. The court appointed attorney is not paid a contingent fee but is paid a reasonable fee for the services rendered. Although the fee may be charged against the shares recovered by the parties represented by the attorney ad litem, the fees may be ordered paid out of the assets of the estate as costs of court and upon final distribution and may be deducted from the shares of those represented by the court appointed attorney ad litem. To require that the attorney ad litem recover his expenses and fees only from his clients’ recovered shares, if any, and only upon distribution of the estate would place the court appointed officer on a contingent fee basis. To so hold would require the attorney ad litem in this case to render professional services for a period in excess of ten years prior to receipt of any fee and to advance expenses for his unknown clients, which expenses and fees the attorney might not recover unless he prevailed. To so hold would discourage courts from appointing attorneys to serve as officers of the court as contemplated by the Texas Rules of Civil Procedure.

The order of the probate court directing the executors to pay the expenses and fees of the attorney ad litem for the unknown heirs is affirmed.