*1 respect con Kirkland, teachers’ to act. Bell v. With District, tracts in the the valid Barnhart ref.). error (Tex.Civ.App.1931, obligations Independent of the Barnhart obliga become the School District would discrepancies between Nor will Independent tions School Mertzon order. void the Board’s order and minutes Independent Rocky District. Mount min County Judge testified Jackson, 152 School District v. at the meet prepared utes and оrder were (Tex.Civ.App.1941, ref.). error consequently they construed will be ings, pari materia. together just as statutes in position In we view of our in this case 286, Statutes, Sec. 188. 53 Tex.Jur.2d assign- Appellees’ need not consider cross
ments of error. considering not the whether or the trial court is af- arbitrary the Board’s action was substan firmed. Is applicable. tial evidence rule is Rock Independent land District No. School Affirmed. Cоunty Board of School Trustees County, (Tex.
Colorado 1968,
Civ.App. error ref. n. r. teachers, only
Barnhart school had four elementary only
maintained an school
in September, 1969 had one student. At the time of the annexation order Joseph Appellant, MEA, students numbered seven. Mertzon has fully equipped larger school with a student Appellee. MEA, Doris body. Thus there was substantial evidence uphold the action of the Mertzon Trus Nos. 533. tees. Texas, Appeals of Court of Civil Tyler. also hold that We Court Trial Jan. 1971. had the authority permit the introduc tion of additional testimony form Rehearing Denied Feb. 1971. certificate though Edgar W. even J. the hearing was held in Angelo San county seat,
not hold Mertzon. We
that this was not in contradiction to Tex. V,
Const. Art. Sec. of the Texas Consti
tution, Vernon’s Ann.St.1 Cases cited
Appellants provision that this Con
stitution requiring that hearing held county mandatory seat is where de
cided before-the Constitution was amended
in 1949 permit Legislature to confer
greater flexibility pending on cases in dis
tricts embracing two or more counties.
See Art. V.A.C.S. and Article 1919.
Also see Curry, Hendricks v.
796 (Tex.Sup.1966). Stovall,
1. (Tex. Isbill v. Moore, S.W.2d 1067 Civ.App.1936, writ) ; Bridgman (1944). *2 Schmidt, Saunders, Byron & Caldwell J.
Saunders, Tyler, for Tyner, Jerry Creel, Tyner, Bain & W. J. Bain, Tyler, appellee. for DUNAGAN, Chief Justice. appeals originate from The both causes originated suit. The suit was divorce appellant, filing petition by of a Mea, appellee, Doris Joseph against Mea, Domestic for a divorce the Court of County, for Texas. Relations in and Smith petition alleges “(t)hat, appellant in The plaintiff during marriage and defend- ant, prop- they acquired community certain parti- erty, amicably be of which can all parties.” prayed He tioned between dissolving matrimony bonds of plaintiff and for and defendant between may he further relief to entitled, equity. Sub- either law her sequently appellee counter-suit filed that she alleging divorce community property acquired had certain sought fair marriage during community disposition equitable alleged had also that she property. She and no means separate property or income their services attorneys paying born children were No to her this suit. marriage. to this approved appellant’s an bill appeal in trial court cause No. appointing exception following qual interlocutory the court No. 1 with the order of “Requested additional receiver. ification: evidentiary and
were not ultimate facts or appeal in cause 533 is from a No. The record no ex conclusions.” contains *3 disposing case judgment the court of the of ception objection qualification to the judg- In the last mentioned on merits. by qual judge. made bill with the appellant a di- judge trial denied ment the by appellant accepted as ification was true granted appellee divorce on vorce but by and and correct trial court filed counter-suit, ap- and in its made him the settled this therein. Under law of money $90,000.00 with a pellee a award of appellant excepted state when and filed upon properties to se- certаin exception qualified by bill of as the trial money and cure the award of court, by qualifica he became bound including temporary orders tion, continued presumed qual-. it and will be that the receivership dis- pending final the order made ification was with the consent and timely Appellant position any appeal. approval qualification perfected appeal to this court each part becomes a the bill itself and con appeals consolidated the causes. Both were We, as trolling to the stated facts therein. purposes appeal pur- court for therefore, this accept must the same true. as joint motions suant Co., Refining Craddock v. Humble Oil & therefor. 137, (Tex.Civ.App., 234 141 Ft. S.W.2d ref., e.); writ n. r. Kirkland por- not Appellant appealing from that Railway Company, v. and Texas Pacific 372 cоurt tion of 1963, Paso, (Tex.Civ.App., S.W.2d 367 El awarding appellee, but makes divorce to ref., Depart writ e.); n. r. Hall v. Texas appeal only respects the receiver- Safety, (Tex. Public 413 470 ship and division order Austin, ; Civ.App., 1967, h.) 4 Tex. w. by judg- the trial in its made court final 47, 517; 372, Jur.2d, p. sec. Rule Texas ment. secs, Procedure, Rules (j). of Civil (i) and Co.,
Duenkel v. Amarillo Bank 222 & Trust 1920, Amarillo, appellant’s complaint (Tex.Civ.App., S.W. 670 in his writ ref.); Republic v. Underwriters point of is: trial court second error “Thе Howard, 584, (Tex.Civ.App., 69 S.W.2d failing and erred its discretion in abused Eastland, 1934, dism.); writ Lowrimore v. to make and file additional amended Sanders, 563, 103 (Tex. 129Tex. S.W.2d 739 findings by appellant.” requested facts as Sup., 1937). The case tried before the court without The record reflects court jury. preparation findings fact findings made and filed fact con by conclusions of law tried cases pursuant clusions of re law jury, judge court without a the trial is re quest therefore. Thereafter time ultimate, quired only controlling to find request ly made and filed his for additional pleadings of fact issues raised findings of fact and law conclusions of evidence, required, tendered and is not respond. Appel to which the court failed to upon timely request, findings even to make timely objection lant filed a written respond request evidentiary to so court’s failure to his issues of fact that are on exception filed bill Cowling his written No. and incidental Col nature. v. Waco, Appellant urges here ligan, 1. the failure (Tex.Civ.App., S.W.2d 841 1957, of the trial court to make and file the addi- reformed and affirmed the Su 943; Court, 458, tional of fact and conclusions of preme 312 S.W.2d of dis- Taylor, law constitutes error and an abuse (Tex.Civ. Wade Amarillo, App., cretion of the trial court. h.); n. w. Moore Campbell, (Tex.Civ. community, sepa- so divided Austin, ref., rate, mixed, n. r. taking into consideration record, all of the evidence in the includ- Also under our Rules of Procedure Civil ing not limited the cause of but provisions where there is conflict between parties’ inability as hus- together to live fact, exception of a bill of and statement of wife, MEA the benefits DORIS band (k), those the bill Rule T.R. control. from the estate or would have derived C.P.; Allen, Johnson marriage, through a continuance h.; Eastland, n. w. pаrties, powers disparity earning Inc., Aguilera Reynolds Service, Well abil- capacities and opportunities, business Antonio, San ities, conditions and the relative 1950,writ ref.). ages obligations, their parties, *4 separate and com- size their relative opinion in our the trial court Nevertheless munity estates.” necessary findings make all the of ulti- did upon mate issues deter- which the case was portion contends comрlete A full statement of mined. and appellee the awarding of the to prejudice facts is before this court and no unjust $90,000.00 manifestly to sum is could have accrued to to him. Dillingham, Dillingham v. Ft. Omitting parts, formal court’s dism.). are of fact as follows: marriage of During the “1. Appellant by points of error JOSEPH his MEA, Joseph P. DORIS MEA and P. three, four and five contends excesses, treat- cruel guilty Mea was in the division of court abused its discretion Mea. outrages towards Doris ment and special by placing a property and against property owned all and/or During marriage this JOSEPH “2. by appellant. claimed the com- in full control MEA was P. pursuant Texas, The court in its to INTEREST, INC. MEA pany, stipulation open INTEREST, court entered in awarded company, MEA and items of appellee Doris Mea certain the fact by virtue Jersey INC. of New personal property owned furniture аnd voting other stock he owned respect to prior marriage. by marriage Prior companies. such disposition property in- of the other P. marriage of during the and JOSEPH volved, appeal, of this which forms basis P. Mea MEA, Joseph DORIS MEA judgment provides: cor- regarding decisions made all including disbursements matters, porate ORDERED, AD- “IT IS FURTHER any consulting funds, without by the Court and DECREED JUDGED that of such By virtue officer or director. Cross-Plaintiff, MEA, do DORIS find- it is the corporatiоns, control Cross-
have and recover income Court ing of this Defendant, MEA, the sum JOSEPH control his corporations under such AND NINETY THOUSAND NO/100 appointment subject to and/or DOLLARS, together with ($90,000.00) by evidence. shown per interest annum per (6%) cent six paid, until Judgment thereon from date of substan- MEA owns P. “3. JOSEPH suit, which sum the and for all costs property. separate tial exercise of discretion in the Court MEA owns the State of DORIS “4. pursuant to the laws of mentioned right, fair other than property just, finds to be Texas Judgment. to whether the equitable regard without 5. P. MEA’s earning ca- DOLLARS to ($90,000.00) JOSEPH NO/100 pacity very impressive, fair, MEA, conven- equitable just DORIS tional standard he ability has the make regards without to whether the large and earn sums of money. separate, community so divided be mixed. By comparison “6. DORIS MEA has
a small earning capacity. Any finding “16. fact herein properly is more a conclusion lawof shall “7. P. oр- MEA’s business JOSEPH be deemed to be a conclusion of law.” portunities are prospectively lucrative. The court concluded as matter of law “8. DORIS MEA op- has no business fair, just equitable that “A division of portunities. to, property belonging claimed or con- regard “9. trolled DORIS MEA without was not at fault in break-up community, sepa- whether marriage. mixed, accomplished awarding rate “10. DORIS MEA could have reason- Judgment for NINETY THOUSAND ably anticipated expected gain AND ($90,000.00) DOLLARS NO/100 great financial benefits as result of the MEA, annual payable eight DORIS (8) continuation this marriage. AND installments of TEN THOUSAND *5 each after ($10,000.00)DOLLARS “11. The business NO/100 abilities the re- $10,000.00, the initial installment with spective parties widely are divergent in interest on such to be due installments that P. MEA is in involved JOSEPH payable at time of installment i. e. the such several companies gross large sums day year the each until such 24th of money еach year, and MEA’s DORIS June Judgment the together with interest ability accru- is working limited to as a clerk or full; paid together is with ing thereon secretary weekly for monthly wages. stipulated the property the items between “12. length The of the marriage, the separate property of parties the to be ages relative and health of each the MEA; MEA with P. DORIS JOSEPH parties was arriving also considered in held, owned, propertiеs to receive proper, at a just equitable property by either of the controlled claimed or division. pay his or parties; party each attorneys rendered her for services own “13. The net parties worth of the property the respectively him or regard without as property to whether the Judgment each of them awarded to comprising such net community, worth is on file herein.” mixed, separаte or is substantial. in the record There is evidence “14. attorneys The for DORIS MEA separate and properties, of the total value have very earned a $1,098,- substantial fee. This parties the community, owned is also taken account the division portion into the 045.00; that the value of owned, property the marriage claimed during acquired property and/or parties. controlled The services $313,845.00. attorneys sаid under the circumstances law well established this State in this case were a necessity said property in suits the division of Doris Mea. are with wide courts vested our divorce White, 380 v. discretionary powers. White Judg- “15. The Court finds that the 1964,writ Tyler, rendered, (Tex.Civ.App., be- reference S.W.2d 672 heretofore abuse ref., in the absence ing Judgment r. Also made here to such for the n. herein, discretion, may divide trial court purpose incorpоrating same community,in such separate property, NINETY AND awarding THOUSAND way right, proper as will just complains seem also Roye Roye, portion “a v. fixed court. 1966, ; 92, Tyler, h.) special upon (Tex.Civ.App., property, w. real Dobbs, personal, (Tex.Civ. Dobbs aside to the v. hereinafter set Cross- Defendant, MEA, App., Tyler, h.); Hearn v. n. w. JOSEPH sums; Hearn, property payment Tyler, n. w. h.). [*] [*] [*] ." supra, The trial court au Dillingham Dillingham, is a case was vested with the thority еquitable us in to fix lien on analogous to before an the fact situation separate property there was secure the instant In that case case. money appellee. separate property allegedly involved Mozisek, allegations (Tex. in the Mozisek corporation similar Worth, 1963, Civ.App., dism.) Ft. writ there made divi- bar. The court case at money lien fixed to secure said sum of actually divided рroperty sion of appellee awarded to the is not for fail corporate property equally void between appellant’s property ure on appellee. trial court to describe the appellant and imposed, which it since of law identification fact and conclusions property proof is matter of following finding: made the may in equitable proceedings whatever “ ‘ ** * that the division I find also lien. stituted for the enforcement of the herein between the Hursey Hursey, 165 S.W.2d file Judgment on herein as set out in Dallas, 1942, dism.); regard to equitable just without Smith, (Tex.Civ. Smith is com- whether the so divided h.); Ft. n. w. ” munity, separate or mixed.’ p. Jur.2d, sec. 252. *6 up- response finding to this and in In applying these well established rules of holding the court’s discretion for the trial us, law the record would not before we to awarded, Ap- property the Court of Civil justified sаying be in the trial court peals stated: adjudication of abused its discretion the in “It is true that the trial court did not rights Appel- parties. the of the agree that the with contention second, third, points fifth fourth and lant’s actually corporate property constituted are overruled. separate property appellant,
the of but continued judgment The Court its final plain it made court intended receivership until granting the the order appellee to to have what was awarded be- disposition of the controversies final he was to whether or not mistaken appeal. an the event tween the in of character.” case, disposition of this of our In view dis court in the of its trial exercise complaining point appellant’s first of error cretion, di dividing in in the a appointing re- order a trial court’s the of suit, any may tаke into consideration vorce therefore, moot; appeal the ceiver becomes earning powers, the disparity the between 516 is dismissed. in cause No. ability capacity and opportunities, business breaking up the mar parties, fault in of the af- judgment court’s final The trial spouse the riage, the benefits innocent firmed. of from continuation have received a would supra; Pickitt marriage. Roye Roye, the REHEARING FOR ON MOTION Pickitt, rehear- a has filed motion Appellant Middlesworth h.); Tyler, n. w. por- first of complains Middlesworth, ing he (Tex.Civ. in which di- this court judgment the of h.). w. tion of n. Forth “apply to procedure. rects the clerk of the trial court civil 364(a) provides Rule of deposit payment the the said cash toward amount and the condition the bond provision judgment full amount aforesaid the applicable the of the costs,” judg- money a involving judgment, except because he contends the case a (h) for sec. judgment provides ment and modifies the of Rule reforms 364 which bond, we in lieu a complaint appellant may trial court. With deposit urged with the agree, equivalent tend but not for the reasons clerk cash to required amount of the bond. haveWe authority, any found nor can we advance judgment of the court awarded reason, logicаl for the purposes intent and judgment appellee cash the sum of supersedeas any of the bond to be altered $90,000.00 payable by appellant to be deposit way by of cash in lieu the bond. $10,000.00, payment first installments apply We principles therefore same payable days due and on or before 10 after rules law apply ap- that would had this entry and the balance pellant supersedeаs filed a bond rather than $80,000.00in eight annual installments of lieu cash in of the bond. $10,000.00 beginning year each one Lester, It is stated in the case Elliott entry date of the judgment, like with a Dallas, becoming payable sum due and or be- on h.) : w. fore year each until thereafter June fully paid. “ * * * purpose supersedeas of a ap- indemnity bond is to furnish In accordance with 364(h), Rule T.R.C. pellee, suspend the remedies al- P., the clerk of the triаl court certifies It realizing judgment. lowed on the clerk, has deposited with said security personal lia- addition to the supersedeas bond, lieu cash bility responsible those for the equivalent to the pro- amont the bond as judgment, effectively suspends vided by Rule 364(a), Appellant T.R.C.P. the remedies for the enforcement in his motion for rehearing, makes the fol- judgment, pending appeal. ‘The sole lowing “Appellant’s stаtement: counsel purpose requiring appeal super- an recognizes that this Court under Rule necessarily sedeas bond must therefore T.R.C.P., has right judg- modify appellee security to furnish to the in addi- affirmed, 'it is when dispose personal responsibility tion costs, and to render judgment against *7 Co. v. Automobile Insurance supersedeas bond, any, if the costs.” for 824.’ Teague (Tex.Com.App.) (Emphasis added.) Appellant has cited statement, authority for this ex- and our amination of problem the State, indicates the of “In the case Ford v. Tex.Civ. * * *
statement is entirely 490, 492, not (t)he correct. 209 S.W. appeal said: that an from court ‘We hold We are judgment mindful that the also any character, upon a judgment a of gave appellee the on the a bond, suspend does the supersedeas not therein, appellant, set as out to only stays judgment, but its еxecution satisfy $90,- secure payment and the * * * judg pending appeal. the However, appellee. 000.00 awarded to the it in full until ment itself force remains supersedeas freely bond was entered into affirmed, appel If it be the is reversed. voluntarily security and additional for as a judgment court not enter new late does payment the and judg- satisfaction of the case, judgment revive the nor price stay ment thе a judg- as for the court, the only trial but removes the pending appeal. ment con In this impediment to its execution. nection, requirements fact super- we call and effect a attention bond, by our provided supersedeas are as defined sedeas bond our rules statute, purport suspend performance does not the judgment. This taken, appeal however, judgment deposit, payment is cash is not in only suspend costs, only security but “the execution of the judgment but is ’ ” ** * judgment.” Bayoud See Rule See for such. 368, T.R.C.P.; Nassour, Renger Jeffrey, 143 ; (Tex.Sup., 1944) Dallas, Tex. ref. r. Ex Parte Kimbrough, 135 Tex. judgment It ordered that the is “Super- (Tex.Sup., 1941). judg- be Our lower court shall enforced. Proceedings” Stay F. sedeas hereby previously modi- entered is as Pannill, Hastings Appellate Procedures “ * * * and it fied to read as follows: Co., (Matthew 1964),
Texas Bender & appearing the court that cash lieu Chapter p. 6-1. supersedeas has de- and cost bond been State, supra, page at of the court below posited registry In Ford S.W. Mea, supersedeas hereby judgment discussing appellant, Joseph effect bond, deposit against “If a cash for the we find this statement: case said rendered sentence, affirmed, judgment said the trial judgment, performance thereof appellate with the terms decree of the court is court in accordance costs; funds en- are shall be in the event there judgment of the lower court stated, performance of this does after the remaining As hereinbefore forced. costs, be re- judgment the lower such funds shall judgment not mean that the revived, de- appellant; that it has been force but court turned time, performed the court it shall below all the be certified cision will this Court оriginally rendered.” The clerk of as observance.” entry so as judgment therefore correct 435, T.R.C.P., provides that Rule to this conform order. judgment of the this court when affirms rehearing in all Appellant’s motion against judgment it shall render court respectfully particulars overruled. super- “and the sureties on his bond, any, performance if for the sedeas decree, make and shall judgment disposition as the court of the сosts
such proper, rendering judgment deem
shall on his
against appellant and the sureties bond, any, if
appeal supersedeas for such ” * * * against as are taxed costs him. have instance therefore
The sureties against them not rendered BEAN, Appellant, A. I. for the the cost but indemnity, They act
trial court itself. personal liability of in addition *8 ARLINGTON, Appellee. CITY OF perform appellee for the appellant to the No. 18637. Harris rendered. See the judgment ance Keoun, 135 S.W.2d Texas, Appeals Court of Civil Corp. Waco, 1939, Casray Oil ref.) Fort Worth. Co., Indemnity Royal 5, 1971. Feb. Galveston, affirmed being 955). This deposited cash case, appellant has where bond, cash must then such in lieu appellee in indemnity
necessity serve personal liability for
addition