Lovejoy v. Lillie
569 S.W.2d 501
Tex. App.
1978
Check Treatment

*1 expended by alleges illegally he LOVEJOY, in the Appellant, observations Bureau. Our

Tourist T. Hannah where solely to cases apply original opinion illegally expended public has City itself al., Appellees. Freddrick LILLIE et sought, not Here, recovery is a funds. against but the Tourist City, against 1127. No. 1) an grounds: well on two Bureau and Con Appeals Court of Civil of Tourist by the defendant Texas alleged violation , Tyler. 1396- art. Bureau Tex.Rev.Civ.Stat.Ann. of of 2.24; 2) provisions to the pursuant and June Corpus IX, City Article Section July Denied Rehearing Assuming, arguendo, Christi Charter. may bring who party not such

Bryce is statute, the aforesaid this suit under Bureau, order on the Tourist burden was motion, suit prove that the its to sustain was not authorized brought by Bryce This, IX, 18 of the Charter. Article Section original in the it did not do. As noted portion of the Charter opinion, the relevant the hear not introduced in evidence at not ing the motion. The record does on City Corpus show that the Charter of the Christi, IX, including Article Section thereof, recorded or certified in has been by Tex.Rev.Civ.Stat. required

the manner 1174, respectively. Ann. 1165 and arts. (nor Consequently, neither the trial court Court) judicial notice of could take IX, 18 of the Charter. Article Section See Amarillo, 508 City Kirkman v. 1974, writ (Tex.Civ.App. — Amarillo Houston, n.r.e.); City Hayden (Tex.Civ.App. Worth — Fort n.r.e.). the record writ ref’d Under presented, provision here since the relevant in evi of the Charter was not introduced autho and as the trial court was not dence IX, judicial of Article rized to take notice Charter, no basis existed 18 of the Section of the action. for an abatement rehearing is OVER- The motion for RULED. *2 Walter, Bellaire,

Monroe K. appellant. for Hall, Houston, J. Richard appellees.

DUNAGAN, Chief Justice.

This is a case to determine the heirship the estate Cooper Lovejoy, de- decedent, Freddy ceased. The Cooper Lo- vejoy, died on or December about Houston, Texas, intestate. On or about' 1, 1973, August temporary administration was taken out on his estate Hannah Thompson Lovejoy, last to woman ceremonially whom he was prior married to 27, 1974, February his death. On the ad- application ministratrix filed her for deter- heirship mination of and attorney ad litem appointed represent was the un- known heirs Contestants appeared therein. as follows: Bellare, 1. Ruth Roberts claiming be the wife of Freddy common-law Coo- per Lovejoy; Lovejoy, claiming 2. Elroy to be a sur- son; viving Lillie, 3. claiming Mrs. Philonis to be decedent; wife of the common-law Lillie, son of Freddrick Philonis Lil- decedent, claiming lie and the to be son; surviving and prior to the time the Lillie, but it was decided daughter Mary Elizabeth decedent, How- claiming judgment signed. was rendered and Philonis Lillie and immaterial, as to ever, opinion, in our surviving daughter. it is to be his the in- proceedings stage what jury without a probate sitting Trimble case stant case the decision in the appellant judgment entered was delivered. *3 three adult spouse and the surviving the common-law purported the two offspring of Gordon, In Trimble v. the Su U.S. the to inherit from entitled wives were Court, basing opinion equal its on the preme according to the laws of descent decedent protection clause of the 14th Amendment to of Texas. of the State and distribution Constitution, the struck down United States three a of the Illinois Probate Act under brings provision forward appellant The three were to inher asserting illegitimates permitted that these which points of error adults, by be the children of it intestate succession from their moth found to are not entitled to inherit Cooper Lovejoy, only, legitimates ers whereas inherit could appel- estate. The one-half of decedent’s from both their fathers and their mothers. merely contends point first of error lant’s The rationale of the such decision is that adult children named here that the three discrimination not a does bear reasonable to inherit from the dece- are not entitled legitimate legislative relation to the aims. No reason for such conten- dent’s estate. rejected argument The the that Court diffi second and given. appellant’s tion is The proving paternity culties of in some situa theory of points third of error involve the justified discriminatory provisions tions the estoppel equitable adoption, adoption by or of the Act. asserting that there is appellant merely the The indistinguishable Trimble case is sup- evidence to insufficient evidence or no present from the attack on section 42 of the recovery theory. a based on this port difficulty Texas Probate Code. No in es appellee The asserts that there are three tablishing paternity exists here since the judgment which the of the upon theories court below has found that the children may trial court be affirmed. The first in- biological involved were the children of the by Supreme volves a recent decision the decedent. are of the opinion We that Trim- entitled Trimble Court of the United States ble, being land, law the supreme the of is 1459, Gordon, 762, v. 430 97 52 U.S. S.Ct. but only applicable controlling not is the 1977, 31, illegiti- that an holding L.Ed.2d case at bar. to a equally mate child must be treated Appellant argues that the constitutional determining the legitimate child when in by appellees issue was waived the trial method of descent and distribution of intes- they plead because failed to the same property. tate 42 of the Texas Section and, therefore, subject such issue is not illegitimate child Probate Code treats an disagree. review this court. We legitimate it were child the same as if the illegiti- of his mother but does not treat It is the well established law in legitimate always adjudi mate child as if he were the child this state that the court will The in its conclu- cate a is of his father. trial court whether statute constitutional unconstitutionality held that 42 of the when its is obvious and sions of law Section apparent, regardless Texas Probate Code was unconstitutional of when or how the Decker, the question the extent the section violated is raised. Smith v. 158 Gordon, 416, supra. 632, (1958); in v. The decision Trimble Tex. 312 S.W.2d 636 Gann Gordon, Keith, 626, 413, that Trimble v. v. appellant asserts 151 Tex. 417 Gohlman, Whittle, applica- (1952); after the Lester supra, was a case decided & Co. 548, 808, subject (1925). of this 114Tex. 273 812 This probate tion for which is S.W. and, therefore, in applied applies though alleged suit should not be rule even uncon stitutionality pled. Trimble ease was decided of a statute is not this case. The filed, probate Publishing Company was Houston application after the Chronicle 504 Houston, (Tex.Civ. 531 In

City disposition S.W.2d 177 view the we have made 1975) App.—Houston appeal, writ it unnecessary renders [14th Dist.] (Tex.). discussion of appel appellant’s points n. r. e. 536 Also other S.W.2d presented concerning adoption consider may by estoppel. late courts fundamental er though not they assigned. rors are McCau judgment of the trial court is af- Underwriters, ley v. Consolidated 157 Tex. firmed. (1957); Ramsey v. 304 S.W.2d 265 Dun lop, 146 Tex. S.W.2d 982-83 MOTION ON FOR REHEARING (1947). fundamental errors are Ordinarily Appellant in her motion for rehearing directly adversely af those errors which or asserts that we error in holding generally of the public fects the interest or challenge that she did not finding jurisdiction where none assuming errors in trial court to the' effect that the decedent Townsend, City Baytown v. exists. biological father of Freddy Cooper (Tex.Civ.App.—Houston *4 Lovejoy, Freddrick Lillie and Mary Eliza- 1977, e.); Magic writ ref’d n. r. [14th Dist.] beth Lillie. To support ap- this contention 851, Chef, Sibley, Inc. v. 546 S.W.2d 858-59 pellant upon relies the third paragraph of 1977, Antonio writ (Tex.Civ.App.—San her requested conclusions of law contained e.); McLeroy, ref’d n. r. Douthit v. 539 in request her for findings additional (Tex.1976); McCauley v. Consol S.W.2d 351 fact and law. conclusions of Underwriters, supra; Ramsey idated v. Appellant has holding mistaken such the Dunlop, supra. The section of Texas challenge refer to a the in trial court. To under on Probate Code here attack consti clarify holding specifically the we now state grounds does affect the interest of tutional holding that such inwas reference to no generally. the'public challenge finding such appeal. fact on fact, 42 Since section of the Texas Pro finding of here contro in The illegitimate versy, by bate Code treats child the made the trial was not court legitimate challenged by appellant as if it the child of in her ap same his brief on peal. question preserved. such was not or her mother but does not treat child Therefore, assignment of error has been legitimate as if he or she were the child of by abandoned and cannot considered this father, equal pro it be his or her violates the where, court, here, as error no fundamental the 14th Amendment of tection clause of appears. It is that find necessary material by the United Constitution invidious States ings challenged by appropriate of fact be against chil ly discriminating illegitimate points in or appellant’s appel brief else the Gordon, supra. dren. Trimble v. This stat by findings lant is bound of fact. Since as contained in section utory discrimination finding challenged this of fact not been has against ille 42 of Texas Probate Code error, by any point of it as stands gitimate children is unconstitutional to the proven Accordingly, facts this case. that it conflicts with the Trimble v. extent jurisdiction go no has behind these decision. Gordon findings accept and must them as supported Upon filed find request, the court Gordon, by the evidence. McBurnett v. 534 law wherein ings of fact and conclusions of 1976, S.W.2d 370 (Tex.Civ.App.—Beaumont Cooper Love- the court White, found e.); Slayton n. 487 writ ref’d r. v. biological 1972, father of the three joy was (Tex.Civ.App.—Tyler S.W.2d 204 writ herein, finding the e.); named which children ref’d n. r. State Farm Mutual Automo result, challenge. As a appellant did not bile Company Cowley, Insurance v. 468 findings Cortez, appellants (Tex.1971); are bound those Cortez S.W.2d 353 v. Pharmacy 131, v. fact. Texas Board of 457 133 (Tex.Civ.App.—San State S.W.2d Center, Inc., 1970, Bickler, 541 h.); S.W.2d Bickler Gibson’s Discount Antonio n. w. v. 1976, 354, 884, writ 403 (Tex.Civ.App.—Austin (Tex.1966); S.W.2d 361 Waters v. 886 326, e.); King, (Tex.Civ.App.— 353 n. r. Rule Tex.R.Civ.P. S.W.2d 328 ref’d h.); River West n. w. Colorado Dallas Railroad & New Orleans Ry. v. Texas

ern (Tex.Civ.App.— Co., e.); Thompson r. writ ref’d n. Austin Inc., Lightner, Larry 1950, writ Antonio (Tex.Civ.App. — San e.). n. r. amended motion motion and Appellant’s overruled. respectfully are rehearing CRAWFORD, Appellant, John R. CRAWFORD, Appellee. Madeline Gold *5 No. 16013. Texas, Appeals of Civil Court Antonio. San June Rehearing July Denied