author: BREWSTER, Justice.

text:
    CITY OF KENNEDALE, Appellant, v. CITY OF ARLINGTON, Appellee.
    No. 17675.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 9, 1976.
    Rehearing Denied Feb. 13, 1976.

      Callaway & Marshall, and Clyde M. Marshall, Jr., Fort Worth, for appellant.
    Bagby, McGahey, Ross & DeVore, Stanley E. Wilkes, Jr., and Tom Todd, City Atty., Arlington, for appellee.
   OPINION

BREWSTER, Justice.

This suit was brought by the City of Kennedale against the City of Arlington, seeking a declaratory judgment declaring the rights of those parties to certain lands located within the overlapping extraterritorial jurisdiction of both of those cities as such extraterritorial jurisdiction was created and defined by Art. 970a, V.A.C.S.

As a basis for its claims Kennedale contended that by reason of an apportionment agreement that it had made with the City of Fort Worth involving this same land that it had succeeded to all or some of the City of Fort Worth’s extraterritorial jurisdictional rights within the overlapping area, and that Arlington knew of the agreement and was estopped from trying to annex such land.

Kennedale also sought an injunction against Arlington to prevent Arlington from annexing a part of that land.

In the alternative, Kennedale prayed that the land lying within the overlapping extraterritorial jurisdiction of Kennedale and Arlington be apportioned between them, as provided for in Art. 970a, Sec. 3B, V.A.C.S.

About one year and nine months after the suit was filed, the plaintiff, Kennedale, filed an amended petition naming Fort Worth, also, as a defendant in the case, but the trial court, on its own motion, dismissed the case as to Fort Worth, stating as its reasons for the action that Fort Worth was neither a necessary nor a proper party to the suit.

A non-jury trial was had and the court at its conclusion rendered judgment apportioning the land in the area of overlapping extraterritorial jurisdiction between plaintiff and defendant. This appeal is from that decree.

We affirm the trial court’s decree.

In presenting its case on appeal, Kenne-dale argues its first four points of error together. It groups them under the following heading: “Errors denying appellant any rights or equities by its contract with Fort Worth.”

Its first point is that the trial court erred in holding that the agreement entered into between Kennedale and Fort Worth (Plff. Ex. 3) apportioning extraterritorial jurisdiction between them had no legal effect on extraterritorial jurisdictional rights as between Kennedale and Arlington.

Its point No. 2 is that the trial court erred in holding that Kennedale did not as a result of the contract between it and Fort Worth acquire any of Fort Worth’s rights in the overlapping extraterritorial jurisdictional area of Kennedale and Arlington.

Point No. 3 is that the court erred in holding that apportionment of the extraterritorial jurisdictional area between Arlington and Kennedale had to be apportioned 90% to Arlington and 10% to Kennedale based on their respective populations.

Point No. 4 is that the trial court erred in refusing to hold that all of the overlapping extraterritorial jurisdictional area of Ken-nedale and Arlington was also overlapping as to Fort Worth under Art. 970a, V.A.C.S., and that Fort Worth would have been entitled to 79% of the area on the basis of population under the Act, and that Kenne-dale by its contract with Fort Worth had acquired all or part of Fort Worth’s rights in the disputed area.

We overrule Kennedale’s first four points of error.

The Municipal Annexation Act involved here (Art. 970a, V.A.C.S.) was enacted on May 14, 1963, and became effective on August 23,1963. Deacon v. City of Euless, 405 S.W.2d 59 (Tex.Sup., 1966).

The extraterritorial jurisdiction of Fort Worth under Art. 970a extended five miles from its corporate limits because it had a population at the time in question in excess of 100,000. Kennedale had a population of less than 5,000, so it had an extraterritorial jurisdiction of one-half mile. In this ease Arlington contended that its population on August 23,1963, the date the Act went into effect, was in excess of 50,000 and less than 100,000. If Arlington was in that population bracket, its extraterritorial jurisdiction would have extended 3⅛ miles from its corporate limits. Kennedale contended that Arlington’s population on the date in question was between 25,000 and 50,000. If that had been the case, Arlington’s extraterritorial jurisdiction would have been only two miles. The trial court found that Arlington’s population on August 23, 1963, was in excess of 50,000.

The question of whether Arlington’s population was more or less than 50,000 was important because if Arlington’s extraterritorial jurisdiction extended only two miles from its corporate boundaries, then a part of the land in controversy that was apportioned by the judgment to Arlington would not be located within its extraterritorial jurisdiction and Arlington would have had no claim to that part of it. If Arlington’s extraterritorial jurisdiction extended 3½ miles from its corporate boundaries, as was found by the trial court, then all of the land involved would lie within the overlapping extraterritorial jurisdiction of all three of the cities.

Article 970a, Sec. 3B contained the following: “In the event that on the effective date of this Act the area under the extraterritorial jurisdiction of a city overlaps an area under the extraterritorial jurisdiction of one or more other cities, such overlapped area may be apportioned by mutual agreement of the governing bodies of the cities concerned. Such agreement shall be in writing and shall be approved by an ordinance or resolution adopted by such governing bodies.”

Pursuant to that provision of the statute Kennedale and Fort Worth did in December, 1969, by joint resolutions of their City Councils, enter into a written agreement whereby they apportioned their overlapping extraterritorial jurisdictional rights in the land involved in this suit and in other lands as between themselves. The agreement established a joint dividing line that ran along what was then in part the western corporate limits of Kennedale. Fort Worth did in the agreement relinquish all extraterritorial jurisdictional rights that it had or might thereafter acquire in all territory lying to the east and north of the line and in that agreement Kennedale relinquished all extraterritorial jurisdictional rights that it had or might thereafter acquire in all territory lying to the south and west of the line referred to.

The land that is involved in this suit is located in the area to which Fort Worth, in that agreement with Kennedale, did relinquish all of its extraterritorial jurisdictional rights.

The agreement contained the following provisions: “Fort Worth and Kennedale mutually covenant and agree to protect, preserve and defend the herein apportioned areas against all parties whomsoever.”

Arlington and Kennedale did not enter into a written agreement with each other as provided for in Art. 970a, Sec. 3B, apportioning the land involved here in which they had overlapping extraterritorial jurisdiction.

In October, 1972, Arlington started proceedings to annex all of the area lying between Kennedale’s then existing northeasterly city limits and the then constructed new highways 1-20 and 287. Kennedale then filed this suit to enjoin Arlington’s threatened annexation and to determine the rights of the parties to the land in the area that Arlington was seeking to annex.

On February 6, 1973, which date was after this suit was filed, Arlington and Fort Worth entered into an apportionment agreement (Plff. Ex. 13) pursuant to Art. 970a, Sec. 3B. By their agreement they also established a joint extraterritorial jurisdictional dividing line between them. Their agreement adopted as a part of that line the same line that Forth Worth and Kennedale had agreed upon that ran along the west side of Kennedale. The agreement provided that Arlington relinquish all extraterritorial jurisdictional rights that it had in all areas lying to the right of such line. It also provided that Forth Worth relinquish all extraterritorial jurisdictional rights it had in all the area lying to the left of such line. The land to which Fort Worth thus relinquished its extraterritorial jurisdictional right in this agreement included the same area to which Forth Worth had relinquished its extraterritorial jurisdictional rights in its agreement with Kennedale.

The trial court in deciding this case decided it as if it was simply a suit between Kennedale and Arlington for an apportionment of their overlapping extraterritorial jurisdictional rights, and as if it was in no way affected by either city’s apportionment contract with the City of Forth Worth.

Article 970a, Sec. 3B provides that in a suit between cities having overlapping extraterritorial jurisdictional rights: “Such overlapped area shall be apportioned among such cities in the same ratio (to one decimal) as the respective populations of the cities concerned bear to one another, but in such apportionment no city shall receive less than one-tenth (Vio) of such overlapping area.”

The trial court found that on August 23, 1963, Kennedale had a population of 1,600, and that Arlington then had a population in excess of 50,000. The undisputed evidence showed that Fort Worth’s then population was 356,268.

Kennedale’s reasoning is that had this suit been between Fort Worth, Arlington and Kennedale for the apportionment of their overlapping extraterritorial jurisdictional rights in the land involved that because of the populations of the three cities Forth Worth would have been entitled to have about 79% of the area awarded to it, Arlington would have been entitled to about 11%, and Kennedale would have been entitled to 10% of it.

Kennedale further contends that by virtue of its apportionment agreement with Fort Worth it succeeded to either all, or to at least a part, of Fort Worth’s extraterritorial jurisdictional rights in the area lying between Kennedale’s northerly and easterly city limits and the new U. S. Highways 1-20 and 287 (the area that is involved in this suit).

The trial court in its conclusions of law held that “15. Based upon the ratio of populations of the Cities of Arlington and Kennedale, respectively, the overlapping jurisdictional area of the two cities must be apportioned to allocate 10% thereof to Ken-nedale and 90% thereof to Arlington.” Judgment was rendered accordingly.

We hold that the agreement between Kennedale and Fort Worth by which they apportioned their extraterritorial jurisdictional rights in the property involved between them could not and did not affect the extraterritorial jurisdictional rights that Arlington, who was not a party to such agreement, had in that property.

The undisputed evidence showed that Fort Worth did, both in its apportionment agreement with Arlington and again in its apportionment agreement with Kennedale, for a valuable consideration, relinquish all extraterritorial jurisdictional rights or claims that it had to the land involved in this suit. These three cities were the only ones that had extraterritorial jurisdictional rights in the land involved.

Since Fort Worth thus relinquished its rights in the area, the matter left for the court’s determination in this case is simply how should the extraterritorial jurisdictional rights of Kennedale and Arlington in the area involved be apportioned between them.

We believe that an analogous situation was presented to this Court in the case of City of Hurst v. City of Colleyville, 501 S.W.2d 140 (Forth Worth Civ.App., 1973, ref., n. r. e.). That was also a suit for an apportionment of overlapping extraterritorial jurisdictional rights of the cities involved brought under Art. 970a. The cities of Fort Worth, Hurst, and Colleyville were all made parties to the suit. Fort Worth did have extraterritorial jurisdictional rights in a part of the land involved but Forth Worth got all it wanted out of the case when the court decreed: ‘IT IS FURTHER ORDERED ... by the Court that, although the claims by the City of Fort Worth of extraterritorial jurisdiction to a portion of the land in controversy . are herein recognized, no portion of such land shall be apportioned, under Article 970a ... to the City of Forth Worth.’ ” The court in effect held that the land in which Fort Worth had extraterritorial jurisdictional rights, since Forth Worth did not want any part of it awarded to it, would be apportioned between Colleyville and Hurst according to the guidelines set out in Art. 970a in the same manner as if Fort Worth had never had any claim to such land.

We hold that the trial court was correct in deciding this case as if it was simply a suit between Kennedale and Arlington for an apportionment of their overlapping extraterritorial jurisdictional rights, in view of the fact that Fort Worth had relinquished its claim to the area, and in holding that Kennedale did not by virtue of its agreement with Fort Worth acquire any of Fort Worth’s extraterritorial jurisdictional rights in the area involved as against Arlington, who was not a party to that agreement.

Kennedale argues that if we hold as we have indicated above, we are holding that Kennedale acquired nothing as a result of its agreement with Fort Worth. We disagree with that contention. By virtue of the agreement Kennedale got Fort Worth to relinquish its claims to extraterritorial jurisdictional rights in the area. This was a valuable right. The only hitch was that, since Arlington was not a party to it, the agreement was necessarily made subject to Arlington’s extraterritorial jurisdictional rights in the area. If Kennedale could have thereafter made a favorable agreement with Arlington as to such rights then what Kennedale got out of its agreement with Fort Worth would have been quite valuable.

In Kennedale’s 5th, 6th and 7th points of error it contends that Fort Worth was a necessary and indispensable party or a proper party to this suit and that the trial court committed reversible error in dismissing Fort Worth from the case, and in overruling its motion to continue the case long enough for Fort Worth to be brought in as a defendant.

We overrule these three points of error.

Article 970a, Sec. 3B, provides in substance that when an apportionment suit such as the one here is filed, the plaintiff shall name as parties defendant all cities having a claim to such overlapping area.

It is true that at one time under the provisions of Art. 970a, Fort Worth, Arlington and Kennedale all had overlapping extraterritorial claims to the land involved in this suit.

However, the prevailing petition that Kennedale had on file in the'’case alleged that Fort Worth had by contract with Ken-nedale relinquished all extraterritorial claims that Fort Worth had under Art. 970a to the land involved in the suit. It thus alleged facts showing that Fort Worth had no extraterritorial claims to the land involved and was not therefore a necessary party to the suit. The undisputed evidence also showed that at the time the trial court rendered its order dismissing Fort Worth from the case on September 30, 1974, Fort Worth had no extraterritorial claim to the land involved in this suit for the reason that it had, by contracts with both Kennedale and Arlington, relinquished its extraterritorial claims to such land. It was for that reason not a necessary party and the trial court did not commit a reversible error in dismissing it from the suit.

On this point it is interesting to note that the case had been on file for one year and nine months before Kennedale did on September 20, 1974 file its first amended original petition seeking for the first time to name Fort Worth as a defendant in the case.

We are also convinced and hold that even if the court did err in any of the respects contended for by Kennedale in the three points of error being discussed, that such error or errors were harmless in so far as Kennedale is concerned.

Fort Worth has made no complaint about the court order dismissing it from the case. The decree being appealed from awarded Kennedale extraterritorial jurisdictional rights in at least 10% of the land involved. Since Kennedale’s population was only around 1,600 on August 23, 1963, it would only have been entitled under Art. 970a to have had awarded to it extraterritorial jurisdictional rights over 10% of the area involved even if Fort Worth had not been dismissed from the case. So it is apparent that no harm resulted to Kennedale by the court’s ruling dismissing Fort Worth from the case. Whether Fort Worth was in the case or not, Kennedale was only entitled under Art. 970a to an award of extraterritorial jurisdictional rights over 10% of the area involved. The trial court in the order appealed from did award Kennedale extraterritorial rights in at least 10% of such area.

In Kennedale’s trial pleading it alleged: “As hereinafter more fully alleged, Plaintiff says that said three cities, and particularly Kennedale and Arlington, have heretofore acquiesced in and acted in reliance upon an agreement between their officials and authorized representatives concerning such apportionment, and that they are now estopped to deny such agreement or seek apportionment contrary thereto, both under the doctrines of equitable estop-pel and implied contract.”

Kennedale’s 8th through its 16th points of error are directed at matters that relate to the phase of its case that is advanced by the pleading referred to, and it undertakes to present those points by arguing all nine of them together in its brief presented to this Court. We overrule all nine of those points of error.

The trial court found that there was no such implied contract between Kennedale and Arlington regarding apportionment of their overlapping extraterritorial jurisdiction and that Arlington is not now estopped to deny that there was such an agreement between it and Kennedale.

The evidence offered during the trial was sufficient to support the court’s findings. It showed that there were two meetings attended by representatives of Kennedale, Fort Worth, Arlington, and Forest Hill, the first being at Forest Hill before December, 1969. The second meeting, held not long thereafter, was at Kennedale. The purpose of the meetings was to try to work out between themselves the future boundary lines of the cities. Arlington’s only representative at the two meetings was David Tees, who was an assistant city manager at the time involved. He testified that he was directed by the Arlington City Manager, Veselka, to attend the meetings and find out all that went on there and to report that information back to his superiors. He testified: that he attended the first meeting and just listened and that nothing concrete resulted from the second meeting either; that he had no authority to make an agreement for Arlington and made none; and that his purpose in attending was to find out what was going on and report back.

Arlington’s Mayor Vandergriff testified that there was no verbal or gentlemen’s agreement between representatives of Arlington and Kennedale involving extraterritorial jurisdictional rights of the two cities and that each time any one suggested there was such an agreement he denied it. He testified that David Tees reported back to the Arlington City Council the thinking of Kennedale’s officials as to what the boundaries should be but that the Arlington City Council could not agree with those ideas.

There was considerable other evidence supporting the court’s findings that there was no gentlemen’s agreement or implied agreement between the officials of Arlington and Kennedale relating to the extraterritorial jurisdictional boundaries. The evidence is voluminous and we will not lengthen this opinion by trying to further set it out.

The undisputed evidence showed that the governing bodies of Arlington and Kenne-dale did not enter into a written contract approved by an ordinance or resolution of such governing bodies, apportioning the extraterritorial jurisdiction of the overlapped area between them as is provided for by Art. 970a.

There was sufficient evidence to support the findings complained of in Kennedale’s points of error referred to, and to support the findings and conclusions of the trial court that are controlling on the phase of the case being discussed.

Kennedale next urges its points 17 through 26, inclusive, which ten points it presents to this Court under one argument. Those points of error are that the court erred: 17. In finding that Arlington’s population was 50,000 on August 23, 1963; 18. In not finding that such population was less than 50,000 on the relevant date; 19. In finding that Arlington had an extraterritorial jurisdiction of 3½ miles; 20. In refusing to find that its extraterritorial jurisdiction was only two miles; 21. In concluding that August 23, 1963 was the relevant effective date in determining extraterritorial jurisdiction; 22. In refusing to conclude that May 14, 1963, was the relevant effective date in determining extraterritorial jurisdiction; 23. In refusing to conclude that population cannot be determined by opinion testimony; 24. In admitting the estimates of the witness, Mosard, of Arlington’s population; 25. In admitting documentary evidence of Mosard’s estimates of population; and 26. In overruling Kenne-dale’s motion to strike the testimony of Mosard giving his estimates of the population of Arlington.

We overrule all of those points of error.

The basis of Kennedale’s contentions under the ten points referred to is that the trial court erred in concluding that Arlington did on August 23, 1963, have a population in excess of 50,000 and that it for that reason had an extraterritorial jurisdiction of 3½ miles. The point was important because if Arlington’s population on that date had been less than 50,000 it would have had an extraterritorial limit of only two miles. If Arlington’s population on the date in question had been less than 50,000 and its extraterritorial jurisdictional limits therefore only two miles, then the trial court’s decree would have been erroneous because a part of the land awarded to Arlington was located in Kennedale’s mile extraterritorial limit but more than two miles from Arlington’s corporate boundaries. If it was outside Arlington’s extraterritorial jurisdictional limits, the trial court erred in apportioning that part to Arlington.

The record showed that the 1960 Federal Census of Arlington was 44,775. Its population in 1970 according to the 1970 Federal Census was over 90,000. This evidence showed that the City had an average growth rate of 4,500 persons per year in that ten year period.

Kennedale offered into evidence Plaintiff’s Exhibit 23, which was a study made by the City Planning Department of Arlington in September, 1973, showing the estimated annual population of Arlington from 1960 to 1973. It showed that the estimated population of Arlington on January 1,1963, was 48,926, and that on April 1, 1963, it was 49,291.

Defendant’s Exhibit 7 was prepared by a witness named Gil Mosard who was a demographer employed by the North Central Texas Council of Governments. It showed that the average annual growth rate in Arlington during the 1960 to 1970 period was 7% per year and showed the figures above referred to as being the 1960 and 1970 population of Arlington according to the Federal Census.

We hold that the evidence above referred to was sufficient evidence to support the trial court’s conclusion that Arlington’s population on August 23, 1963, was in excess of 50,000.

The only other evidence as to the population of Arlington on August 23, 1963, was the testimony of Gil Mosard who was a combination planner and demographer for the North Central Texas Council of Governments. Demography is the science of social statistics such as births, deaths, marriages, populations, etc. Mosard’s main duty was to produce population estimates for the 70 cities within the region and to do data gathering and processing problems connected with producing the estimates. He has authored and published books in the field of demography.

This witness, Mosard, testified that: as a part of his duties he gathered and maintained in his custody certain statistical data used by him in his population work for his employer; he obtained his population data from other sources, collected it again himself, and verified it back against his original sources; that in the profession of demographics there are standard or accepted methods of calculating population at a given time, using certain statistical indicators; that building permits, telephones, electrical connections, school enrollment, and water meters are accepted population indicators; and that using each of those indicators and applying accepted demographic methods he had formed an opinion that Arlington had a population greater than 50,000 on August 23, 1963.

Mosard told how he applied an accepted demographic method by using building permit data in reaching his opinion that the population of Arlington on August 23, 1963, was 52,725. At the time Mosard gave into evidence this opinion or estimate the only objections that Kennedale’s attorney had made to such evidence was that the questions called for a statistical estimate that the witness was not qualified to give, because he only used data that was compiled ten years after August 23, 1963, and he is not entitled to express an opinion, because defendant is seeking to have a person in 1973, who was only 14 years of age in 1963, express his opinion as to the population of the City of Arlington on a given date in 1963, and because it is not in the province of a Johnny-eome-lately claimed expert to testify to such an opinion.

The trial court overruled that objection and we hold that his ruling was correct and that the witness’ estimate as to the population of Arlington on August 23, 1963, was properly admitted into evidence at the time it was introduced.

Kennedale contends that the population of a city is a matter that cannot be proved by opinion evidence. We disagree with that contention. The following is from 31 Am.Jur.2d 721, Expert and Opinion Evidence, Sec. 158: “Estimates of number and quantity . . . may be given by witnesses who have sufficient knowledge of the subject matter of inquiry to give opinions that are dependable and trustworthy.”

We are convinced that the doctrine just quoted applies to the estimate of the population of the City of Arlington that was given by the witness, Mosard, during the trial of this case. He qualified as an expert in the field of demography. His employment caused him to be engaged daily in the practice of the science of demography, which is the science of determining social statistics such as populations. We hold that the estimate as to the population of Arlington on August 23, 1963, given by Mosard was, under the facts existing in this case at the time it was admitted, admissible in evidence as against the objections that were urged to it.

The witness, Mosard, then testified that basing his estimate of Arlington’s population on the electrical connections formula, which he fully testified to, he estimated Arlington’s August 23, 1963, population to be 55,139. While giving that estimate Mos-ard testified that the source of his information as to the number of electrical meter connections in the City of Arlington on the date in question was Texas Electric Service Company. Kennedale made the same objection to that estimate that it made to the one arrived at by use of the building permit formula and added the objection that Mos-ard’s testimony as to the source of the information he used being Texas Electric Service Company showed that his estimate is not based on facts that are proven in evidence.

We hold that under the rules laid down in Lewis v. Southmore Savings Association, 480 S.W.2d 180 (Tex.Sup., 1972), the trial court’s action in overruling that objection made to that opinion was correct.

The witness then testified that he also estimated the population of Arlington on August 23, 1963, by using the water meter, school enrollment and telephone connection methods and that in each instance when the accepted demographical formula was applied it resulted in showing that Arlington had a population in excess of 50,000 on August 23, 1963.

At the times these estimates were admitted in evidence Kennedale had been given the same bill of exceptions to their admission as it had to the estimate based on the electrical connections method referred to just above. We hold that the trial court’s ruling as to the admissibility of the estimates based on the water meter, school enrollment and telephone connections were also correct because of the rules laid down in the Lewis v. Southmore Savings Association case, supra.

Kennedale’s 25th point of error is that the trial court erred in admitting into evidence Defendant’s Exhibits 7, 8, 9 and 10 which exhibits were a documentary presentation of the witness, Mosard’s opinions and estimates as to Arlington’s population. They were admitted along with his testimony of his estimates. The objections made to them were the same as above shown that Kennedale made to Mosard’s oral testimony on the same subject matter. We hold that those exhibits were properly admitted into evidence for the same reasons above set out that the oral testimony was admissible.

In Kennedale’s 26th point of error it contends that the trial court erred in overruling its motion to strike the testimony of the witness, Mosard, as to opinions and estimates of Arlington’s population. We overrule the point.

The statement of facts reveals that Ken-nedale made no such motion to strike as the one described in its 26th point of error. The motion to strike that was actually made by Kennedale was that all of the testimony of the witness, Mosard, be stricken.

During cross-examination of the witness Mosard he testified that one Dana Lefler, an employee of the City Planning Department of the City of Arlington, gathered some information for him and wrote it on a sheet of paper. It showed the number of building permits, the number of water, telephone and electrical connections, and the school enrollment in Arlington on August 23, 1963. Mosard said he used a lot of that information in figuring his estimates. This testimony was not before the court at the time Mosard’s opinions and calculations were admitted. In fact, this evidence created a conflict in Mosard’s testimony as to where he got the information as to the number of electrical meter connections there were in Arlington on the date in question because he had testified on direct examination that he had gotten that information from Texas Electric Service Company.

After this evidence was developed on cross-examination, Kennedale moved that all of the testimony of the witness, Mosard, be stricken. Mosard’s testimony occupies 38 pages in the statement of facts. Some of his testimony was admissible without any question. Much of it was not even objected to. The trial court did not err in overruling Kennedale’s motion to strike all of the testimony of the witness, Mosard.

The applicable rule is set out in the opinion in the case of Guadalupe Valley Electric Coop., Inc. v. Towns, 397 S.W.2d 496 (Corpus Christi Civ.App., 1965, no writ hist.), on page 498 as follows: “A motion to strike the evidence of a witness not specifying the particular testimony to be struck is too general, and overruling such a motion is not error. The trial court is not called upon to cull out a particular part of the evidence upon a motion to exclude. Brown v. Mitchell, 88 Tex. 350, 31 S.W. 621, 623, 36 L.R.A. 64; Galveston, H. & S. A. Ry. Co. v. Gormley, 91 Tex. 393, 43 S.W. 877; Foley Bros. Dry Goods Co. v. Settegast, supra, Tex.Civ. App., 133 S.W.2d 228, writ ref.; Waller v. Summers, Tex.Civ.App., 299 S.W.2d 752, writ ref. n. r. e. If the evidence is admissible in part, and inadmissible in part, and the motion to strike is general, going to the whole, the motion should be overruled where it does not specifically point out the inadmissible testimony. Texas Pipeline Co. v. Ennis, Tex.Civ.App., 44 S.W.2d 773, writ dism.; Bennett v. Hood, Tex.Civ.App., 238 S.W.2d 587; Waller v. Summers, Tex.Civ.App., supra.”

For other cases on this point see 56 Tex. Jur.2d 521, Trial, Sec. 178.

Since the testimony of the witness, Mos-ard, stating his estimates as to the population of Arlington on August 23, 1963, was not subject to any of the objections made to its admission at the time it was admitted, and since no proper motion to strike such testimony was made by Kennedale, the record before us is the same as if such testimony had been admitted without objection and as if there had been no motion to strike made. Mosard’s testimony giving his estimates as to the population of Arlington was, under those circumstances, before the trial court and before this appellate court for whatever probative force it might have. See Poole v. State Highway Department, 256 S.W.2d 168 (Fort Worth Civ.App., 1953, writ dism.); Federal Underwriters Exchange v. Stewart, 109 S.W.2d 1031 (San Antonio Civ.App., 1937, writ dism.); and Amarillo Independent School District v. Barr, 389 S.W.2d 95 (Eastland Civ.App., 1965, no writ hist.).

In addition to what we have said, when the witness, Mosard, testified as to his estimate of the population of Arlington on August 23, 1963, based on his calculations using the electrical connections formula, he testified that his source of the information as to the number of electrical connections in Arlington was Texas Electric Service Company. Thereafter he testified that an employee in the planning department of the City of Arlington had obtained the information for him. This created a conflict in the testimony of Mosard as to the source of his information as to the number of electrical connections in Arlington at the time in question. This presented a fact question for the trial court to determine, since he was the fact finder, as to the witness’ source of the pertinent information. If Mosard had obtained the information himself from Texas Electric Service Company it would appear that his estimate arrived at by use of the electrical connection formula would have been clearly admissible under the rules laid down in Lewis v. Southmore Savings Association, supra.

Conflicting testimony of any one witness on a certain issue presents a fact issue to be resolved by the fact finder in the case. Durham v. I. C. T. Insurance Co., 283 S.W.2d 413 (Dallas Civ.App., 1955, writ dism.); Republic Heater Co. v. First-Wichita Nat. Bank, 465 S.W.2d 395 (Fort Worth Civ.App., 1971, ref., n. r. e.); and Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561 (1952).

We hold that there was sufficient evidence of probative force before the trial court to support its finding that Arlington’s population on August 23, 1963, was in excess of 50,000 and to support its finding that Arlington had an extraterritorial jurisdiction on that date of 3½ miles.

In its 21st point of error Kennedale contends that the trial court erred in holding that August 23, 1963, was the relevant effective date in determining extraterritorial jurisdiction under Art. 970a. We overrule the point.

The trial court selected August 23, 1963, as the date for determining the population of Arlington. That court held that the population of the cities involved on that date determined the limits of their extraterritorial jurisdiction under Section 3A of the Act. We hold that the trial court’s conclusion was correct.

Section 3 of Art. 970a is the part of the statute providing that a city can have extraterritorial jurisdiction. And paragraph 3B of the Act prescribes the two methods by which cities having overlapping extraterritorial jurisdiction in an area can apportion same between them.

The first paragraph of Sec. 3B of the Act provides in part as follows: “In the event that on the effective date of this Act the area under the extraterritorial jurisdiction of a city overlaps an area under the extraterritorial jurisdiction of one or more other cities, such overlapped area may be apportioned by mutual agreement . . . .” (Emphasis ours.)

And the second paragraph of Sec. 3B of the Act provides in part: “At any time after one hundred and eighty (180) days from the effective date of this Act, any city having an extraterritorial claim . shall have authority to file a plaintiff’s petition (for apportionment). . . . ” (Emphasis ours.)

The effective date of Art. 970a was August 23,1963. Deacon v. City of Euless, 405 S.W.2d 59 (Tex.Sup., 1966).

The language of the Act referred to makes it clear to us that the effective date of Art. 970a is the relevant date under the Act for determining the population of the cities involved and thus the limits of their extraterritorial jurisdiction.

In Kennedale’s 27th point of error it contends that the trial court erred in decreeing apportionment of extraterritorial jurisdiction as set forth in the judgment. The 28th point is that the court erred in rendering judgment and making findings that imply that the area awarded each city was more suitable for the city to which it was awarded. The 29th point of error is that the court erred in refusing to make its requested findings that the area between Kenne-dale’s city limits and the new U. S. Highways 287 and 1 — 20 to the northeast of Ken-nedale is more suitable for annexation to Kennedale than to Arlington. We overrule each of those three points of error.

Kennedale admits in its brief that these three contentions are cumulative of claimed errors of the trial court that we have heretofore discussed. We hold that the court’s findings involved in those three points are not against the overwhelming weight and preponderance of the evidence as is contended for by Kennedale, and that there was sufficient evidence in the record to support all the findings and conclusions on which the trial court based its judgment.

Kennedale’s points numbered 30 through 34, inclusive, complain of alleged errors made by the trial court in admitting evidence. We overrule each of those points of error and hold that no reversible error is shown by any of them.

This case involved a non-jury trial. The following is from 4 Tex.Jur.2d (Part 2) 428, Appeal and Error, Sec. 855: “Under the rules governing reversal of judgments, error in admitted testimony in a nonjury trial is not a ground for reversal of a judgment if there is other and competent evidence to support the judgment and it is not apparent from the record that the trial court was influenced by the inadmissible evidence to the appellant’s prejudice.”

That rule is applicable here to each of the points being discussed. It is not apparent from the record before us that the trial court was influenced by any inadmissible evidence and there is evidence besides that being complained of to support the trial court’s decree.

It is many times a wise move for a trial court, in a non-jury trial, when presented with a difficult evidence ruling, to admit such evidence and then after retiring to the quiet of his chambers brief the point and thus better determine the question of whether or not to consider it.

The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Lucille L. BELL, Appellant, v. Christine Walker SMITH, Appellee.
    No. 17678.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 16, 1976.

      Perez & Dickens, and Frank W. Sullivan, III, Fort Worth, for appellant.
    John Whiteside, Fort Worth, for appellee.
   OPINION

BREWSTER, Justice.

This is a trespass to try title suit brought by Lucille Bell against Christine Walker Smith seeking to recover the title and possession of the North 115 feet of Lot 2, Block “A”, Grande Vista Heights Addition to Fort Worth, Tarrant County, Texas. The trial court’s judgment decreed that plaintiff take nothing from defendant by reason of her suit and the plaintiff has appealed.

We affirm.

The appellant, Lucille Bell, urges one point of error, it being that the trial court erred as a matter of law in holding that she had no ownership interest in the land in question.

We overrule that point.

In this non-jury trial no findings of fact or conclusions of law were filed by the trial court and he was not requested to file any.

It is settled that in a non-jury trial when findings of fact and conclusions of law were not requested or filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339 (Tex.Sup., 1968), and Crawford v. Boyd, 453 S.W.2d 232 (Fort Worth Civ.App., 1970, ref., n. r. e.). The following is from Crawford v. Boyd, supra: “In such a case the trial court’s judgment implies that all necessary fact findings were made by that court in support of the judgment. In determining whether there is any evidence to support the judgment and the implied findings of fact incident thereto the appellate court can consider only that evidence that is most favorable to the issue and must disregard entirely that which is opposed to it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950).”

We are required to apply the law referred to in deciding this case.

We are convinced that there are valid legal theories upon which the trial court’s judgment can be upheld that are fully supported by the evidence in the case.

1. The trial court, under applicable law and under the evidence in this ease, could have correctly theorized or concluded that the appellee, Christine Smith, became the owner of title to a xh interest in the property in the transaction of October 1, 1969, in which Logan and Joyce Garner deeded the property to Lonnie Smith. Such a conclusion could have been correctly arrived at on the theory that a trust resulted when the purchase money for the property was paid for from the community funds of the marriage of Gene D. Smith and Christine Smith.

2. Since Gene D. Smith also owned a ½ interest in the property because of the resulting trust referred to, and thereafter executed a quitclaim deed quitclaiming his interest iri the property to Christine Smith, the said Christine Smith by virtue of that quitclaim deed acquired the other ¾⅞ interest in the property, making her the owner of all of it.

We will hereinafter discuss our reasoning and the authorities that we have considered in arriving at the conclusions we have expressed above.

Christine Smith acquired a ½ interest by reason of a resulting trust

During the trial the parties stipulated that Logan and Joyce Garner were the common source of title.

There was evidence in the case to the following effect:

Gene D. Smith and the appellee, Christine Smith, were living in the house in question in 1969 as tenants; they were at that time husband and wife; about that time they became interested in buying a house and made a deal to buy the property in question from Logan and Joyce Garner; on October 1, 1969, they went to a lawyer’s office to close the deal; the lawyer asked the two Smiths, who were both present at the closing, who he should name in the deed as the grantee, and Gene D. Smith told the lawyer that they were buying the house for his son, Lonnie Smith, and to name him in the deed as the grantee; Lonnie Smith was Gene D. Smith’s son by a prior marriage and he was not the son of Gene D. Smith’s then wife, Christine Smith; Christine Smith was present when Gene Smith told the lawyer to put Lonnie Smith’s name in the deed as grantee; Christine Smith testified that she was dumbfounded when she heard Gene D. Smith tell the lawyer to put Lonnie’s name in the deed as grantee, but remained silent about it until after the deal was closed; she was inexperienced in business; on leaving the lawyer’s office she asked Gene Smith why he had his son, Lonnie’s, name put in the deed as grantee instead of their names and he told her that it was handled in that way for tax purposes and that the title would be put into their names later; the consideration for the purchase of the house was a $2,000.00 down payment and the assumption by grantee of the balance due on a $6,000.00 note that was secured by a lien on the property and the further assumption by grantee of the balance due on a paving lien against the property that was originally in the amount of $700.00; Gene D. Smith and his then wife, Christine Smith, paid the down payment by issuing a check to the sellers drawn on an account into which Smith had been depositing the earnings that he made during his marriage to Christine; after the purchase of the house was completed Gene D. Smith and his wife, Christine Smith, continued to live in the house; after the deal was closed they made the payments on the paving lien until it was paid off with their community funds and they made the monthly payments as they accrued on the $6,000.00 note that was assumed; these payments were made with their community funds; after the deal was closed the testimony showed that Gene Smith and his wife, Christine, made extensive improvements throughout the house, the cost of which was in excess of $1,000.00, and that these improvements were paid for from their community funds; Lonnie Smith has never had possession of the property; and Gene Smith and Christine Smith, or one of them, has had possession of the property at all times since its purchase.

Before his marriage to the appellee, Christine Smith, Gene D. Smith had been married to the appellant, Lucille Bell. Lonnie Smith was the son of Lucille Bell and Gene D. Smith. He was born while they were married.

On October 4, 1973, Lonnie Smith died intestate, without having ever married and without leaving any children surviving him. His father, Gene D. Smith, and his mother, the appellant, Lucille Bell, were his only heirs.

On October 19, 1973, a district court in Tarrant County rendered judgment divorcing Christine Smith from Gene D. Smith. That divorce decree also contained the following provision: “It is therefore ordered, adjudged and decreed by the Court that Petitioner, Christine Walker Smith, shall have and receive as her property and estate any interest which the parties have in the lot, house and improvements at 1001 Springfield, in Fort Worth, Tarrant County, Texas, more specifically described above, and Respondent is ordered to sign a Quit Claim Deed to Petitioner conveying to her any interest which he has or may have in said property.”

The property located at 1001 Springfield is the property that is the subject matter of this lawsuit.

The evidence further shows that on August 9, 1973, Gene D. Smith executed Defendant’s Ex. 25, which is a quitclaim deed by which he quitclaimed to the appellee, Christine Smith, all of his right, title and interest in and to the land that is involved in this suit. On October 17, 1973, Gene D. Smith executed Plaintiff’s Ex. 4 which is a warranty deed purporting to convey to the appellant, Lucille Bell, a interest in the land involved in this suit. Those two exhibits show that they were both acknowledged by the grantor on October 17, 1973, before the same notary. The evidence does not show which instrument was acknowledged first. The warranty deed was filed for record on November 7, 1973 and the quitclaim deed was not recorded until February 5, 1974. Gene D. Smith testified that he executed the quitclaim deed before he executed the warranty deed to Lucille Bell.

Gene D. Smith further testified that after closing the deal on the purchase of the property involved in October, 1969, that he and his wife, Christine Smith, filed joint income tax returns with the U. S. Internal Revenue Service for the years 1969, 1970, 1971 and 1972. In each of these tax returns Gene D. Smith and wife, Christine Smith, claimed deductions for the annual taxes that they paid on the property involved here and for the part of the monthly payments that they made on the property that was in payment of the interest that had accrued on the lien notes being paid off.

Lucille Bell’s contention is that because she was the mother of Lonnie Smith she inherited a ½ interest in the property from him when he died intestate while owning same. If she had any other interest in the property it would have come to her by reason of the October 17, 1973 warranty deed to her from Gene D. Smith, Lonnie’s father.

It is the general rule that where one person buys land and pays for it with his own funds and takes title in the name of another, a trust results in favor of the person whose money was used in making the purchase. The one furnishing the money is the equitable owner of the land and the named grantee in the deed is a mere trustee and holds the land for the benefit of him who paid the purchase money. A resulting trust for purchase money must arise at the time of passage of title. Cohrs v. Scott, 161 Tex. 111, 338 S.W.2d 127 (Tex. Sup., 1960). For many other cases so holding see 57 Tex.Jur.2d 424, Trusts, Sec. 43. And where community funds of a marriage are used to pay for the purchased property and title is taken in the name of a third person, the trust results to the community estate. First State Bank of Carbon v. Thurman, 12 S.W.2d 146 (Tex.Comm.App., 1929) and 57 Tex.Jur.2d 431, Trusts, Sec. 46.

It is also established that an exception to the above stated general rule exists in instances where the grantee’s parent furnishes the purchase money and the title to the land is taken in the name of the child. In such an instance a presumption arises to the effect that the parent intended to make a voluntary advancement or a gift to the child. But this presumption can be rebutted by evidence showing that the purchase was intended for the benefit of the persons who advanced the purchase money and was not intended as a gift to the child. Shepherd v. White, 10 Tex. 72 (Tex.Sup., 1853); Smith v. Strahan, 16 Tex. 314 (Tex.Sup., 1856); and Turner v. Dinwiddie, 276 S.W. 444 (Eastland Civ.App., 1925, no writ hist.).

In this case the burden of proof to show that the property involved was held in trust by Lonnie Smith was upon the one claiming the trust, namely, Christine Smith. Turner v. Dinwiddie, supra.

From the cases cited it is apparent that one of the controlling issues for the court’s determination in this case was whether Gene D. Smith and his wife, Christine Smith, intended at the time the property was purchased and title taken in the name of Lonnie Smith to vest title absolutely in Lonnie Smith, or that he hold such title in trust for them. Turner v. Dinwiddie, supra.

The evidence in this case that is above set out was sufficient to raise a fact issue for the court’s determination on this controlling issue that we have just referred to.

Under the law cited above the trial court’s judgment implies that the trial court decided that controlling issue of fact in favor of the appellee, Christine Smith. In other words he decided that Gene D. Smith and wife, Christine Smith, did not intend at the time the property was purchased to vest absolute title in Lonnie Smith by giving it to him and that they intended that Lonnie Smith hold title to such property in trust for them.

Under this reasoning the land in question was the community property of the marriage between Gene D. Smith and Christine Smith by virtue of a resulting trust in their favor. One-half thereof was the property of the appellee, Christine Smith, and the other half belonged to Gene D. Smith. No part of it belonged to Lonnie Smith and his mother therefore inherited no interest in the property from Lonnie Smith when he died. Elliott v. Mansfield, 398 S.W.2d 442 (Beaumont Civ.App., 1965, ref., n. r. e.), is additional authority for this conclusion.

Christine Smith acquired the other ½ interest by virtue of the quitclaim deed from Gene D. Smith

Gene Smith testified that he executed the quitclaim deed, quitclaiming his interest in the property to Christine Smith before he executed the warranty deed purporting to convey his ½ interest therein to Lucille Bell. The quitclaim deed was dated August 9, 1973, and the warranty deed was dated October 17, 1973.

A quitclaim deed is effective to convey to the grantee named therein all of the right, title and interest that the grantor had in the property at the time involved. Threadgill v. Bickerstaff, 87 Tex. 520, 29 S.W. 757 (1895), and Meacham v. Halley, 103 F.2d 967 (Fifth Circ. Ct. of App., 1939).

It is not necessary that a deed be recorded in order to be effective as a conveyance of title. Lichtenstein v. F & M National Bank of Kaufman, 372 S.W.2d 716 (Dallas Civ.App., 1963, no writ hist.), and Thornton v. Rains, 157 Tex. 65, 299 S.W.2d 287 (1957).

During the trial no direct evidence was offered by either party to prove the date or dates of delivery of either the August 9, 1973 quitclaim deed to Christine Smith or the October 17, 1973 warranty deed to Lucille Bell.

The grantee in the quitclaim deed involved here, Christine Smith, had possession of that deed and offered it into evidence as Defendant’s Ex. 25 at the time of the trial. Where the evidence shows that the grantee has possession of a duly executed deed, a presumption arises that such deed was delivered by the grantor and accepted by the grantee. Gonzales v. Adoue, 94 Tex. 120, 58 S.W. 951 (Tex.Sup., 1900); Foster v. Cumbie, 315 S.W.2d 151 (Dallas Civ.App., 1958, ref., n. r. e.), and Chandler v. Hartt, 467 S.W.2d 629 (Tyler Civ.App., 1971, ref., n. r. e.).

And in the absence of evidence to the contrary, a deed will be presumed to have been delivered at the time of its execution. Lichtenstein v. F & M National Bank of Kaufman, 372 S.W.2d 716 (Dallas Civ.App., 1963, no writ hist.), and Hooks v. Vanderburg, 328 S.W.2d 467 (Fort Worth Civ.App., 1959, no writ hist.).

As has been stated, the quitclaim deed from Gene D. Smith to Christine Smith was dated August 9,1973, and it was acknowledged by the grantor on October 17, 1973. The law is that in the absence of evidence showing the date of delivery of a deed, where the deed is dated one date and the acknowledgment a different date, it will be presumed that the deed was delivered to grantee on the date of the deed and not ■ on the date of the acknowledgment thereof. Popplewell v. City of Mission, 342 S.W.2d 52 (San Antonio Civ.App., 1960, ref., n. r. e.), and for additional cases see 19 Tex.Jur.2d 382, note 9, Deeds, Sec. 99.

The evidence shows that Lucille Bell recorded her October 17, 1973 warranty deed on November 7, 1973, and that Christine Smith did not record her August 9, 1973 quitclaim deed until February 8, 1974. Lucille Bell contends that because her deed was recorded before that of the appellee Christine Smith that the latter’s claim to the property derived under her then unrecorded quitclaim deed was cut off.

We disagree with that contention for the reasons hereinafter stated.

On October 17,1973, the date of execution of the warranty deed by Gene Smith to Lucille Bell, the appellee, Christine Smith, was in actual possession of the property conveyed by such deed. She was then living in it as her home and continued in possession of it until this case was tried in 1975.

The law is that notice of title given by possession of property is equivalent to the constructive notice that is afforded by the registration of the deed to such property. Mainwarring v. Templeman, 51 Tex. 205 (Tex.Sup., 1879), and Wimberly v. Bailey, 58 Tex. 222 (Tex.Sup., 1882). In other words, since Lucille Bell’s deed was obtained by her at a time when Christine Smith was in actual possession of the property, the said Lucille Bell was not a bona fide purchaser and was charged with notice of all the rights and title of the possessor in and to such property. Park v. Sweeten, Tex.Civ.App., 270 S.W.2d 687, aff. in 154 Tex. 266, 276 S.W.2d 794; Triangle Supply Company v. Fletcher, 408 S.W.2d 765 (Eastland Civ.App., 1966, ref., n. r. e.); and Orfic Gasoline Production Co. v. Herring, 273 S.W. 944 (Waco Civ.App., 1925, no writ hist.).

Following the reasoning we have advanced, under the cases we have cited, the trial court could have correctly theorized or concluded: that by virtue of the trust that resulted from the purchase transaction of October 1, 1969, Gene D. Smith became the owner of a interest in the property involved and that Christine Smith became the owner of the other ½; that on August 9, 1973, Gene D. Smith executed and delivered to Christine Smith a quitclaim deed by which he conveyed all the right, title or interest that he had in such property to the said Christine Smith; by virtue of this quitclaim deed Christine Smith acquired the other interest, making her the owner of all of the property; the October 17, 1973, warranty deed executed by Gene D. Smith conveyed nothing to Lucille Bell, because he owned no interest in the property at the time he executed such deed, he having before that quitclaimed it to Christine Smith; Lucille Bell acquired no interest in the property by inheritance from her son, Lonnie Smith, because Lonnie Smith was a mere trustee and had never owned an interest in the property.

There is ample evidence in the case to support those theories and we hold that they are valid legal theories upon which the trial court’s judgment can be upheld.

The judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    A. W. JAMES, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.
    No. 17682.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 16, 1976.
    Rehearing Denied Feb. 13, 1976.

      Johnson, Bailey, Bailey & Balch and H. Deloyd Bailey, Wichita Palls, for appellant.
    Brown, Herman, Scott, Dean & Miles, and Grant Liser, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

Under his Claim No. L-088385-N1 A. W. James prosecuted his claim before the Industrial Accident Board of Texas for benefits under the Texas Workmen’s Compensation Act. His claim was against Texas Employers Insurance Association, hereinafter termed the insurance company. The claim was predicated upon injuries alleged to have been sustained June 14, 1973 while an employee of Boaz Well Service Company.

January 14, 1975 the Board entered an award granting Mr. James benefits totaling $6,189.30. The insurance company served its notice of dissatisfaction and intent to appeal the award, and did file suit to set the same aside on January 27, 1975. Claimant A. W. James filed answer consisting of a general denial, with nothing plead by way of cross-action for compensation benefits.

Thereafter the following interesting events followed, all in 1975:

February 6, Non-Suit by insurance company pursuant to Rule 164.
February 17, notation on face of docket of trial court, without identity of maker shown, reciting that the insurance company had taken Non-Suit pursuant to provisions of Rule 164.
February 18, Cross-Action for compensation benefits filed by A. W. James.
March 4, Insurance company’s Plea to the Jurisdiction filed to the Cross-Action, with its answer filed subject thereto.
March 21, Motion to Reinstate case on the court’s docket filed by claimant A. W. James.
March 27, pursuant to hearing held by the court, notation on the court’s docket that Motion to Reinstate ease was denied.
April 10, Order denying Motion to Reinstate signed by the court and filed with the clerk. (This was the only instrument in the case signed by the court.)
April 14, Notice of Appeal filed by claimant A. W. James.

Thereafter appeal by A. W. James, the claimant, was timely perfected, and in due course heard in this Court.

We reverse the action of the trial court, and remand the cause for trial on the merits of his claim for compensation.

When there has been an appeal to a court of competent jurisdiction from the award of the Industrial Accident Board in a Texas Workmen’s Compensation ease, after an answer of any kind has been filed by the defendant the court shall be deemed to have acquired jurisdiction of the parties involved and of the issues involved in the claim presented to the Board. This means that for purpose of the continuity of jurisdiction thus acquired by the court that the court has jurisdiction of the claim or cause of action of the party who was claiming compensation before the Board, whether presented by his written pleadings or not.

This rule has application when the appeal is by the insurer as plaintiff, and when the claimant, as the defendant, has not yet filed his cross-action for compensation benefits. In such state of the record there is continuity of jurisdiction until opportunity has been afforded the claimant to advance his claim by cross-action, and in the instant case claimant’s cross-action instrument has been filed.

The trial de novo provided by V.A.T.S. Art. 8307, Sec. 5, “Determination of questions; suit to set aside final ruling and decision; revocation of association’s license", is of the issues involved in the award of the Industrial Accident Board. Ordinarily in such de novo trial the necessity would be to hear anew the evidence upon such issues, with probative effect thereof determined.

Once the claimant has plead anything on an appeal from the Board’s award the court’s jurisdiction attaches and persists though his case be dismissed and a period greater than 30 days expire without his application to the court for its reinstatement. The court in the exercise of its discretion may thereafter grant reinstatement and try the case. Federal Underwriters Exchange v. Read, 138 Tex. 271, 158 S.W.2d 767 (1942).

In addition to Read additional authoritative statements supporting the statements hereinabove made are to be found in the following authorities: Texas Reciprocal Ins. Ass’n v. Leger, 128 Tex. 319, 97 S.W.2d 677 (1936); Zurich General Accident & Liability Ins. Co. v. Rodgers, 128 Tex. 313, 97 S.W.2d 674 (1936); Jasper v. Liberty Mut. Ins. Co., 119 S.W.2d 386 (El Paso, Tex.Civ.App., 1938, error refused). See also 5 C.J.S. Appeal and Error § 1524 (Trial de Novo) — Nature p. 988; and 42A Words and Phrases, “Trial de Novo”. The case of Hardware Mutual Casualty Company v. Clark, 360 S.W.2d 921 (Waco, Tex.Civ.App., 1962, writ dism.), relied on by the insurance company, is inapplicable. It was a suit to mature the award of the Board, not a suit on appeal from an award of the Board. Nature of such a case is inconsistent with an appeal operative to vacate and annul the Board’s award.

In National Indemnity Underwriters v. Shelton, 115 S.W.2d 1140 (San Antonio, Tex.Civ.App., 1938, no writ history) the question of jurisdiction was before that court under factual situation substantially identical to that presently before us. In the San Antonio ease all the claimant had before the trial court was his general denial, etc., to the petition of the insurance company which had appealed from an award of the Industrial Accident Board. (There claimant’s earlier cross-filed action had been dismissed at his own request; it had been to have the insurance company placed in receivership and not for any right to workmen’s compensation and obviously wholly inappropriate to the proceeding.) The insurance company then had notation entered on the docket to the effect that as plaintiff in the cause it had dismissed its case with all costs paid pursuant to provision of V.A.T.S. Art. 2089. The article has been repealed but was made T.R.C.P. 162, “Discontinuance in Vacation”, in identical language. The authority thereby provided is for the plaintiff to make entry of discontinuance on the court’s docket. More than 30 days after the dismissal in Shelton the court held its hearing on the claimant’s motion to annul the dismissal and expunge the docket entry thereof. The court denied the motion, but granted claimant leave to amend his pleadings and therein seek proper affirmative relief upon the same issues which had been before the Board on his claim for compensation. The court overruled the insurance company’s plea to the jurisdiction based upon the claimant’s action dismissing his cross-action, plus his delay in seeking reinstatement of the case.

In such circumstances the San Antonio Court held that the jurisdiction of the trial court had persisted despite the docket entry. Indicated by the opinion, though not a holding necessary to the appeal, was that there had been no abuse of discretion in permitting the claimant to plead and try his case on proper issues under the Texas Workmen’s Compensation Act.

Here we have the same situation as that presented to the San Antonio Court except there the trial court had granted leave to plead, without considering any necessity of reinstatement of the case as one to be tried; here the trial court denied reinstatement of the case and, impliedly, admission of the claimant’s pleadings as a valid cross-action. We do not consider that the insurance company’s act in taking its non-suit by T.R.C.P. 164, “Non-Suit”, rather than by T.R.C.P. 162, “Discontinuance in Vacation” to amount to more than a distinction without a difference.

There is no question but that the trial court’s action was on the theory that it had lost jurisdiction due to the expiration of more than 30 days after both February 6 and February 17. By the authorities we may know that the jurisdiction of the trial court had not been lost and that leave could have been granted to the claimant to proceed on his cause of action. Application of the law to the facts and circumstances compel the holding that the failure to do so constituted an abuse of discretion.

Appropriate to the circumstances here would be the statement made by Associate Justice Sharp in Texas Reciprocal Ins. Ass’n v. Leger, 128 Tex. 319, 97 S.W.2d 677, 679 (1936), as follows:

“It is not permissible for a party against whom an award has been rendered by the Industrial Accident Board to defeat the purpose of the law by appealing to a court of competent jurisdiction, and then, before that court has acquired jurisdiction of the parties and subject-matter, and before an opportunity is given to all parties concerned to assert their rights therein, dismiss the suit, abrogate the award, and destroy the interests of the parties involved in the award appealed from. The law does not sanction such a principle, and such procedure would not be tolerated.” In other words we deem the same thing to be true when the court has acquired jurisdiction of the parties and subject matter.

Judgment is reversed, with cause remanded to the trial court for a trial on the merits.


author: CORNELIUS, Justice.

text:
    STATE HIGHWAY DEPARTMENT OF TEXAS, Appellant, v. Earl Loyd MARIS, Appellee.
    No. 8330.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 20, 1976.

      John Hill, Atty. Gen., Harold G. Kennedy, Asst. Atty. Gen., Austin, for appellant.
    Joe B. Lovelace, Lovelace & Thompson, Inc., Linden, for appellee.
   CORNELIUS, Justice.

The Texas Department of Highways and Public Transportation, a self-insurer under the Workmen’s Compensation Act, appeals from a judgment based upon jury findings that Earl Loyd Maris was totally and permanently incapacitated as a result of an injury he received while employed by the department. The points of error contend (1) there was no evidence or insufficient evidence to support the jury finding that the total incapacity was permanent, and (2) the trial court erred in allowing evidence to go before the jury as to the amount and duration of compensation which may be allowed for total and permanent incapacity.

Without attempting to mention all aspects of the testimony, the following is a fair summary of it: Appellee was twenty-five years old on November 28, 1972, when the injury occurred. He had worked for appellant since January of 1968. His job as a rodman required him to carry a 100 foot chain, mark distances, use an axe, drive stakes, cross back ditches and climb hills and fences. He had never had any difficulty performing any of his duties prior to his injury. The injury occurred as he was crossing a highway and was struck by an automobile. He was rendered unconscious, suffered abrasions and contusions, and both his legs were broken with the femurs completely severed. He was hospitalized, where the fractures were reduced by surgery with metal pins being inserted to hold the bones in place. After two weeks in the hospital he returned home to recuperate, and some six months later he returned to work on light duty. Some two and a half months later he returned to the hospital where the metal pins were removed from his legs. After about five more weeks, on October 1, 1973, he returned to work. The trial was held on May 12, 1975. Although Dr. Reed, appellant’s witness who performed appellee's surgery, testified that complete healing should be expected in eight to twelve months in an injury such as that suffered by appellee and in his opinion appellee should have no permanent disability, appellee testified that he could not do his job; he had a limp which caused him to tire easily and he has not been able to overcome it; he walks stiff-legged and has great pain in his thighs, hips and back; he can no longer do the extra outside work he once did; he is nervous and does not sleep well; although he is still working for the highway department he is unable to do most of the work that is required of him and that his fellow employees are merely “carrying him; ” and his condition has stabilized and is not getting any better. The testimony of appellee’s wife confirmed much of his testimony, and in addition she stated that appellee’s limp had gotten progressively worse. Two of appellee’s fellow employees testified that he had a bad limp and could not get around or do the work that he once could and that he is not able to perform the usual tasks of a workman. Dr. Roberson, who treated appellee since the surgery, testified that appellee still suffered pain and weakness in his back, hips and thighs; he could not walk long distances without pain and fatigue; there was some atrophy in the leg muscles; he had suffered a change in gait which causes abnormal alignment of the vertebra and resultant back pain; the limp was due to the leg fractures; appellee will have the limp the remainder of his life and it will continue to cause fatigue and back pain; appellee is not the same man that he was; and he would not recommend appellee for employment because he considers that appellee would be a liability to an employer. Dr. Roberson also stated there is a possibility that as a result of healing or some other factor, one of appellee’s legs may be shorter than the other, which causes the limp, and he felt that the injury to appellee’s legs had extended to and affected other parts of appel-lee’s body.

In opposition to the appellee’s evidence appellant produced the testimony of Dr. Reed, Dr. Stern, and two employees of the highway department. Dr. Reed gave his opinion that in time appellee would completely recover and should have no permanent disability. Appellee had suffered an injury to one of his knees in a motorcycle accident prior to the injury in question and Dr. Reed stated it was his opinion that if appellee had a permanent limp it was due to the knee injury rather than to the leg fractures. Dr. Stern, a neurosurgeon, testified he found no neurological abnormality. On cross-examination he agreed that x-rays appeared to show a mild scoliosis (leaning) of the spine which could indicate a limp or a favoring of one leg over the other. The two highway department employees testified that even before his injury appellee had a distinctive or peculiar gait or manner of walking; appellee had received a promotion and several pay raises since he returned to work and was making more money than before the injury; and they were aware of no complaints as to the quality of his work or his ability to perform his duties since the injury. On cross-examination Dr. Roberson agreed that weakness and muscle atrophy were significant contributors to ap-pellee’s difficulty, and these would diminish with time and increased activity and exercise.

It is appellant’s contention that the evidence reveals only that appellee is still in the process of healing and that in time he will be completely recovered with no permanent incapacity.

“Total incapacity” as used in our workmen’s compensation law does not mean an absolute inability to perform any kind of labor. A person disqualified from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment is regarded as being totally incapacitated or totally disabled. Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000 (1944); Texas Employers’ Insurance Association v. Vineyard, 316 S.W.2d 156 (Tex.Civ.App.Dallas 1958, no writ). It is recognized that the duration and extent of incapacity is at best an estimate which must be made by the jury from all the pertinent facts before it. Texas Employers’ Insurance Association v. Steadman, 415 S.W.2d 211 (Tex.Civ.App.Amarillo 1967, writ ref’d n. r. e.); Insurance Compa ny of Texas v. Anderson, 272 S.W.2d 772 (Tex.Civ.App.Waco 1954, writ ref’d n. r. e.). And that estimate may be based upon circumstantial evidence even though such evidence is from lay witnesses and is contradicted by the testimony of medical experts. Aetna Casualty & Surety Company v. Brewer, 411 S.W.2d 629 (Tex.Civ.App.Amarillo 1966, writ ref’d n. r. e.); Export Insurance Company v. Johnson, 401 S.W.2d 324 (Tex.Civ.App.Amarillo 1966, writ ref’d n. r. e.); Texas Employers Insurance Association v. Hoover, 382 S.W.2d 174 (Tex.Civ.App.Dallas 1964, writ ref’d n. r. e.); Travelers Insurance Company v. Wade, 373 S.W.2d 881 (Tex.Civ.App.Dallas 1963, writ ref’d n. r. e.). Where it can reasonably be inferred from the evidence that the claimant’s injuries are permanent and that they totally disable him from performing the usual tasks of a workman in such a way as prohibits him from procuring and retaining employment, a verdict of total permanent incapacity will be affirmed. 63 Tex.Jur.2d, Workmen’s Compensation, Sec. 461, p. 515. The fact that a claimant works and even earns more money after his injury than before is not conclusive on the issue of his incapacity. It is but an evidentiary fact to be considered by the jury along with the other evidence bearing on the question. 63 Tex.Jur.2d, Workmen’s Compensation, Sec. 462, pp. 521, 522. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. It may believe all or part or none of the testimony of any witness and it may reach its conclusion by blending all or portions of the evidence and reasonable inferences to be drawn therefrom. And any doubt we may have as to whether the evidence actually supports the jury finding must be resolved in favor of the injured workman. Maryland Casualty Company v. Davis, 464 S.W.2d 433 (Tex.Civ.App.Amarillo 1971, writ ref’d n. r. e.); Travelers Insurance Company v. Arnold, 378 S.W.2d 78 (Tex.Civ.App.Dallas 1964, no writ).

Adhering to the principles heretofore noticed, and considering the testimony that appellee was still disabled long after Dr. Reed stated he should have experienced complete recovery, the testimony of Dr. Roberson that appellee would always have a limp with its general consequences, the evidence of possible scoliosis and its attendant difficulty, the testimony of Dr. Roberson that appellee would be a liability to an employer and he would not recommend him for employment, together with the other evidence as to appellee’s physical condition and inability to work as before, it can be concluded that appellee was permanently incapacitated to the extent that he could not procure and retain employment. Although reasonable minds certainly could arrive at a different conclusion, we are unable to say that the evidence is insufficient to support the jury’s finding, or that such finding is so against the great weight and preponderance of the evidence as to be manifestly wrong. Points of error 1 & 2 are respectfully overruled.

In points of error 3 & 4 appellant complains of the presentation of evidence to the jury concerning the amount and duration of compensation payable under the workmen’s compensation law. Appellant’s answer to an interrogatory was read to the jury wherein it was stated that “ . the proper compensation rate for any period of total incapacity sustained by the plaintiff is $49.00 per week . . . ”. Appellee testified at one point that he had been paid $49.00 per week for 32 weeks and 5 days. We find no indication in the record that the 401 week duration of compensation for total and permanent incapacity was revealed to the jury. Although the practice of advising the jury of the amount or duration of compensation which may be received for an injury has been criticized, there is no showing, and we are unable to find, that the revelation of the amount of compensation here harmed appellant to the extent that it was calculated to or probably did result in the rendition of an improper verdict. Tex.R.Civ.P. 434. Points of error 3 & 4 are therefore respectfully overruled.

The judgment of the trial court is affirmed.

      . State Highway Department of Texas at the time of trial.


author: SHANNON, Justice.

text:
    Nanci Adams HOLLEY, Appellant, v. David E. ADAMS, Appellee.
    No. 12343.
    Court of Civil Appeals of Texas, Austin.
    Jan. 21, 1976.
    Rehearing Denied Feb. 11, 1976.

      Stephen M. Orr, Austin, for appellant.
    Rogan B. Giles, Austin, for appellee.
   SHANNON, Justice.

This appeal concerns the termination of a parent-child relationship. Tex. Family Code Ann. § 15.02 (1974).

Appellee, David E. Adams, filed suit in the district court of Travis County seeking a termination of the parent-child relationship between his son, David Christopher Adams, and appellant, Nanci Holley, the mother of the child and formerly appellee’s wife. After trial to the court, judgment was entered terminating the parent-child relationship between the boy and appellant. We will affirm that judgment.

Appellee alleged that he and appellant had been married and that during their marriage a son, David Christopher, was born to them in February of 1966. Appel-lee and appellant were divorced by the district court of Travis County in 1969. By the terms of the divorce decree, appellee was awarded custody of the boy. Appellant was not ordered to pay child support. Ap-pellee pleaded further that termination of the parent-child relationship between appellant and her son would be in the best interests of the.child. As grounds for termination, appellee alleged that appellant had failed to support the child in accordance with her ability during a period of one year ending within six months of the date of the filing of the suit, and that appellant had “emotionally and actually abandoned the child.”

After judgment and upon request, the court filed findings of fact and conclusions of law. The findings of fact are summarized as follows. Appellee and appellant lived together as husband and wife until the spring of 1968 when appellant moved out. Afterward appellant filed a suit for divorce against appellee, and during the pendency of the divorce, appellant voluntarily delivered physical custody of David Christopher to appellee. At that time the child was about three years of age. Appellant did not contest the judgment awarding custody of the boy to his father. From the time appellant delivered the child to appel-lee in early 1969, through the date of appel-lee’s marriage to his present wife in late 1970, appellee provided all of the shelter, clothing, food, health care, entertainment, training, education, love, and affection for the child. Following appellee’s present marriage, he and his wife have acted as father and mother to the child.

Shortly after the divorce was entered, appellant was committed by her mother to the Austin State Hospital for observation and treatment. She was released from the hospital after a weekend stay. After her release she departed Austin in the company of three men with whom she made her way from Texas to the State of Washington.

Appellant married Randie Shreve in Seattle on March 14,1970, by whom she bore a child in August of 1970. Appellant divorced Shreve in June of 1973. Appellant married her present husband, Ricky Holley, in March of 1974.

Before her marriage to Shreve appellant worked as a telephone solicitor to support herself, receiving the minimum wage. In 1972, appellant obtained employment at the University of Washington as a program ad-visor. At the time of trial appellant still held that position. After her divorce from Shreve, appellant filed proceedings in voluntary bankruptcy. She was discharged from her debts by the bankruptcy court in September of 1973. When appellant began her employment with the University she received $500.00 each month. In January, 1975, her salary had increased to $693.00 monthly. Though appellant’s present husband is a full time student, he receives $366.00 each month from the United States government and earns about $60.00 each month as a tutor.

Since August, 1969, appellant has returned to Austin three times. Appellant’s mother, as well as her son, lives in Austin. On each of the three trips to Austin, appellant has visited with her son.

Since appellant moved from Austin, she has sent a total of about $100.00 to David Christopher. Occasionally, she sent clothing and toys. At least one of the packages was returned to appellant unopened. Ap-pellee did not refuse to accept any money tendered by appellant for support of the child. Appellee, however, did not accept a check for twenty dollars sent by appellant as a birthday present to the child during the pendency of the litigation. Appellant testified that she occasionally wrote to the child, directly, and indirectly through her mother. Appellee and his present wife denied that they refused to read to the child any letters which reached them.

David Christopher has enjoyed good health, and has a happy relationship with appellee and his step-mother. He has exhibited no behavior problems. He has attended school regularly and has made good grades.

The court found as a fact that appellant had not supported the child in keeping with her ability during a period of one year prior to filing of the petition for termination.

The district court concluded, among other things, that though appellant was not ordered to pay child support by the terms of the divorce judgment, she had a continuing duty by virtue of Tex. Family Code Ann. § 4.02 (1974) to provide support for her son. The court concluded further that appellant failed to support the child in accordance with her ability during a period of one year ending within six months of the date of filing of the petition for termination within the meaning of Tex. Family Code Ann. § 15.02(1)(E) (1974), and that such failure was not excusable under the circumstances within the meaning of Tex. Family Code Ann. § 15.02(1)(E) (1974). The court was also of the opinion that appellant, by her conduct and virtual abandonment of the child for a period of nearly six years, had engaged in conduct which endangered the emotional well-being of the child within the meaning of Tex. Family Code Ann. § 15.-02(1)(D) (1974). Finally, the court concluded that termination of the parent-child relationship between appellant and the child was in the best interest of the child within the meaning of Tex. Family Code Ann. § 15.02(2) (1974).

Appellant attacks the dispositive findings of fact and conclusions of law of the district court by many points of error. We will not attempt to discuss the points in their order of appearance in appellant’s brief.

Contrary to appellant’s claim, the trial court concluded correctly that appellant had a continuing duty to provide support for her child even though she was not ordered to do so by the terms of the divorce decree. Each spouse has the duty to support his or her minor children. Tex. Family Code Ann. § 4.02 (1974). See Curton v. Gordon, 510 S.W.2d 682 (Tex.Civ.App.1974, writ ref’d n. r. e.).

Texas Family Code Ann. § 15.02 (1974) empowers the court to grant a petition terminating the parent-child relationship of a non-requesting parent upon the finding that:

“(1) the parent has:
“(D) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; or
“(E) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition;
“(I) ... and
“(2) termination is in the best interest of the child.” (Emphasis supplied)

With respect to his suit for termination of appellant’s parental rights under § 15.02 appellee had the burden of demonstrating facts in compliance with (1)(D) or (1)(E) and (2) that termination was in the best interest of the child. See White v. Chamberlain, 525 S.W.2d 273 (Tex.Civ.App. 1975, no writ). As written previously, the district court was of the opinion that appel-lee discharged his burden in proving compliance with (1)(D) and (1)(E) and (2).

Appellant by three points of error maintains that the fact finding that she did not support her child in keeping with her ability during a period of one year prior to the filing of the petition for termination was supported by no evidence or, alternatively, that the finding was so contrary to the great weight and preponderance of the evidence so as to be manifestly unjust. We will overrule those points of error.

The petition for termination was filed on July 26, 1974. One year prior to that date appellant earned in excess of $500.00 each month. By January of 1975, she earned $693.00 monthly. It is true that she filed voluntary bankruptcy proceedings in June of 1973, but she was discharged from her debts by the bankruptcy court in September, 1973. In nearly six years appellant sent no more than $100.00 in support of her son. Though the testimony was conflicting, the trial court concluded that appellee did not refuse to accept any money tendered by appellant in support of the child. Appellant did testify that she had a policy of group health insurance presumably obtained in connection with her employment at the University, and that as a member of her family the child, David Christopher, was covered by the terms of that policy. Though appellant did send occasional packages of clothes and toys to the child, occasional gifts are not sufficient to satisfy the requirements of § 15.02(1)(E). See Curton v. Gordon, supra.

As we are of the opinion that the court’s finding with respect to § 15.02(1)(E) is sound, it is not necessary to consider appellant’s points of error attacking the court’s finding concerning § 15.02(1)(D).

As she must, appellant attacks the determination by the trial court that the best interest of the minor child was served by the termination of her parental rights. Prior to their divorce appellant delivered the child to appellee. Appellant then embarked upon a rootless trek to the western states with three male companions. She obtained employment in Seattle, and married twice more. During all of those years she saw her son only three times. She did send him a little money, a few clothes, and a few toys. We agree with the district court that from the time appellant deposited David Christopher with appellee, it was appellee who provided all of the shelter, clothing, food, care, training, love, and affection for the child. After appellee remarried, he and his present wife have acted as father and mother to the child.

Under the record, we are of the opinion that the trial court correctly concluded that it was in the best interest of the child that appellant’s parental rights be terminated.

The judgment is affirmed.


author: CADENA, Justice.

text:
    Alan GUGENHEIM et al., Appellants, v. Manuel TREVINO, Appellee.
    No. 15465.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 21, 1976.
    Richie, Greenberg & Brackman, Houston, for appellants.
    Roger T. Trevino, Pearsall, for appellee.
   CADENA, Justice.

Defendants, Alan Gugenheim and David Askanase, appeal from an order of the District Court of Frio County overruling their pleas of privilege and refusing to transfer the cause to Harris County, the domiciliary county of both defendants.

Plaintiff, Manuel C. Trevino, filed this suit in Frio County to enforce payment on a draft. According to plaintiff’s petition, his complaint was against “Alan Gugenheim and David Askanae [sic] D/B/A Bain Penut Company of San Antonio, defendants. .” After both defendants had filed separate pleas of privilege, plaintiff filed his controverting affidavit, which incorporated by reference plaintiffs petition and alleged that such petition showed that the suit is “against a private association, to wit: Alan Gugenheim and David Askanase DBA Bain Peanut Company of San Antonio, Texas; . . . Plaintiff contended that the suit was maintainable in Frio County under the provisions of subdivision 23 of our venue statute, Article 1995, Tex.Rev.Civ.Stat. Ann. The controverting plea also alleged that the suit “is lawfully maintainable in Frio County as to Alan Gugenheim and therefore * * * this suit is properly maintainable against all of the Defendants” in Frio County under subdivision 29a of Article 1995.

Plaintiff has filed no brief in reply to defendants’ brief.

Subdivision 23 provides that a suit against a private corporation, association or joint stock company to be brought “in the county in which its principal office is situated; or in the county in which the cause of action or part thereof arose; or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation, association or company has an agency or representative in such county; . . . .”

Clearly, subdivision is applicable only where the suit is against a private corporation, association or joint stock company. Plaintiff’s petition in this case identified the defendants as Alan Gugenheim and David Askanase, who are identified in the petition as doing business under the name of Bain Peanut Company. The petition does no more than allege that the two named defendants operate and do business under the trade name of Bain Peanut Company. Under the allegations of plaintiff’s petition, the only defendants in this case are Alan Gugenheim and David Askanase. Assuming that Bain Peanut Company is a “private association” within the meaning of subdivision 23, that entity is not a party to the suit. The suit, therefore, is not a suit against a private association, and subdivision 23 is not applicable. Dillard v. Smith, 146 Tex. 227, 205 S.W.2d 366, 367 (1947).

We do not find any basis for maintaining venue in Frio County under subdivision 29a. Under that subdivision, whenever there are two or more defendants in any suit brought in any county and the suit is lawfully maintainable in such county under the provisions of Article 1995 as to any of such defendants, such suit may be maintained in such county against all necessary parties to the suit. In his controverting affidavit plaintiff alleged that since the suit is lawfully maintainable in Frio County as against Alan Gugenheim, it is lawfully maintainable in such county as against David Askanase. In order to maintain the suit against Askanase in Frio County, plaintiff must establish that Gugenheim was suable in such county under some exception found in Article 1995. 1 McDonald, Texas Civil Practice § 4.36, p. 544 (1965 rev.). We find nothing in the pleadings which would sustain venue in Frio County as against Gugenheim. Subdivision 29a is inapplicable.

The judgment of the trial court is reversed and the cause is remanded with instructions to transfer the cause to Harris County as provided in Rule 89, Tex.R.Civ.P.


author: BARROW, Chief Justice.

text:
    ALLIED BANK OF TEXAS, Appellant, v. Gus PREISSMAN et al., Appellees.
    No. 15508.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 21, 1976.
    Rehearing Denied Feb. 11, 1976.

      Nancy B. Hogan, Butler, Binion, Rice, Cook & Knapp, Houston, for appellant.
    John C. Oliver, Oliver & Oliver, James R. Warncke, Collins B. Cook, San Antonio, for appellees.
   BARROW, Chief Justice.

Appellant, Bank, has perfected its appeal from a temporary injunction granted appel-lees, Gus Preissman and wife, Thelma Preissman, Ben Katz, John Oliver, and James R. Warncke, prohibiting appellant from foreclosing under its first-lien deed of trust on certain land during the pendency of the main cause of action. This is the third interlocutory appeal of this cause and reference is made to our two prior opinions for a full statement of the background of this controversy. See Preissman v. Continental-Bank of Texas, 524 S.W.2d 579 (Tex.Civ.App.—San Antonio 1975, writ dism’d); Preissman v. Allied Bank of Texas, 525 S.W.2d 265 (Tex.Civ.App.—San Antonio 1975, no writ).

The suit was originally filed in Bexar County by appellees against Salado Creek Development Company, Moses Muzquiz, W. G. Horne, and Continental-Bank of Texas (now the Allied Bank of Texas). Appellees sought to foreclose on a promissory note executed by Horne on December 21, 1973, which was assumed by Salado Company and Muzquiz on December 26, 1973. Appellees further sought to set aside a subordination agreement entered into by them with Horne whereby their lien and deed of trust was subordinated to enable Horne to secure a loan from a bank. On January 4, 1974, Horne borrowed $1,500,000.00 from Bank and secured the note evidencing the loan with a first-lien deed of trust as authorized by the subordination agreement. Appellees alleged that the subordination agreement was executed by them because of fraudulent representations made to them by Horne or by Muzquiz, or both, regarding the financial status of Muzquiz and the use to be made by Horne of the money to be borrowed from a bank. Appellees sought to recover damages for this alleged fraud in the event the subordination agreement is not set aside. Appellees did not charge Bank with any act of fraud or with any prior knowledge of the allegedly false representations by Horne or Muzquiz.

Bank’s plea of privilege was sustained in a prior hearing by the trial court and the suit as to Bank was ordered transferred to the District Court of Harris County. This order was affirmed by us and the Supreme Court has dismissed the application for writ of error. While this appeal was pending, the note given the Bank became in default and Bank posted notice of its intention to foreclose on its first-lien deed of trust. Before the sale could be had, appellees sought and secured this temporary injunction prohibiting such sale. The trial court found, after a non-jury hearing, that appellees’ application for temporary injunction should be granted to preserve the subject matter of the suit and prevent irreparable injury to appellees. Appellees posted a bond in the amount of $25,000.00 as ordered by the trial court.

The trial court is authorized to issue a temporary injunction to maintain the status quo during the pendency of the suit where the applicant shows a probable right to permanent relief and a probable injury. Manning v. Wieser, 474 S.W.2d 448 (Tex.1971); Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953); City of Dumas v. Sheehan, 514 S.W.2d 819 (Tex.Civ.App.—Amarillo 1974, no writ).

Bank urges that the trial court abused its discretion in granting this temporary injunction in that appellees had an adequate remedy at law as Bank and Horne are both able to respond fully to the money damages sought by appellees should Bank’s foreclosure be wrongful. Bank also complains that appellees have not shown a probable right to permanent relief against it in that there is no claim by appellees of any wrongdoing on the part of Bank. Finally, it is urged that the bond of $25,000.00 is grossly inadequate to indemnify Bank for its damages by being temporarily denied its right of foreclosure.

The evidence is largely uncontradict-ed at this point. Appellees concede that they entered into the subordination agreement with Horne for the express purpose of permitting Horne to obtain a bank loan of $1,500,000.00 and to permit Horne to give a first-lien deed of trust as security for such loan. It is uncontradicted that a bank is not authorized under Texas law to make a loan on real estate unless such loan is secured by a first-lien. As heretofore pointed out, there is no pleading or even contention at this point by appellees that Bank had any part in the allegedly fraudulent representations by Horne or Muzquiz which induced appellees to enter into the subordination agreement. Thus, there is no basis for setting aside Bank’s first-lien deed of trust.

The note given the bank is in default and Bank is now entitled to foreclose on its valid first-lien deed of trust. It is settled law that the right of the first-lien holder to foreclose is not affected by the objections of the second-lien holder. Lincoln Nat. Life Ins. Co. v. Freudenstein, 87 S.W.2d 810 (Tex.Civ.App.—San Antonio 1935, no writ); Dellinger v. Gulf Production Co., 215 S.W. 360 (Tex.Civ.App.—Beaumont 1919, writ ref’d).

The sum of $1,100,000.00 is now owed on Bank’s note, but appellees have alleged that the amount of the note that the Bank is entitled to secure under the deed of trust is uncertain and should be determined before a foreclosure sale is held. It is seen that appellees have an adequate remedy at law in that Bank is able to respond for any damages to appellees should there be any irregularities whatsoever in the foreclosure sale. Appellees have filed a lis pendens notice and any purchaser at Bank’s foreclosure sale will take subject to the rights, if any, of appellees.

There is no evidence in the record before us to support a finding by the trial court that appellees have shown a probable right to permanent relief against Bank or that irreparable harm will result if Bank is not prohibited from holding its foreclosure sale pending the trial on the merits. Therefore, the trial court erred in granting the temporary injunction prohibiting Bank from exer-rising its right to foreclose its first-lien deed of trust.

The temporary injunction granted by the trial court is dissolved.