Ackermann v. Vordenbaum

• Decision Date: 25 May 1966
• Docket Number: No. A--11101,A--11101
• Citation: 403 S.W.2d 362,15 A.L.R.3d 893
• Parties: Milton O. ACKERMANN et ux., Petitioners, v. Ernestine VORDENBAUM, Respondent.
• Court: Texas Supreme Court

Page 362

403 S.W.2d 362

15 A.L.R.3d 893

Milton O. ACKERMANN et ux., Petitioners, v. Ernestine VORDENBAUM, Respondent.

No. A--11101.

Supreme Court of Texas.

May 25, 1966.

Rehearing Denied June 22, 1966.

Jandt & Jandt, Seguin, for petitioners.

Threlkeld, Saegert & Saegert, Seguin, W. James Kronzer, Houston, for respondent.

NORVELL, Justice.

Upon an appeal from an order dismissing this cause, the Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for the plaintiff, Ernestine Vordenbaum. The Court of Civil Appeals held that the trial court erred in overruling the plaintiff's motion for summary judgment and rendered judgment for the plaintiff in accordance with Rule 434, Texas Rules of Civil Procedure. 393 S.W.2d 927. We affirm.

The plaintiff in the trial court was the appellant in the Court of Civil Appeals and is the respondent here. ¹ We will use the trial court designation of the parties.

Two questions are involved, namely, (1) Did the trial court err in dismissing this cause?, and, if that question be answered in the affirmative, (2) Was the Court of Civil Appeals correct in rendering judgment for the plaintiff or should the cause have been remanded for another trial?

The first question presents little difficulty. The action was in trespass to try title in which the grounds of recovery were specifically alleged. The plaintiff alleged that on December 5, 1951, she executed a deed conveying one and one-fifth acre of land out of the G. Malpaz Survey No. 67 in Guadalupe County, Texas to the defendants, Milton O. Ackermann and wife, Emelie Ackermann, in which she reserved a life estate and a vendor's lien, said lien being reserved 'until the above described obligations are fully complied with according to their intent and purpose when this deed shall become absolute'. The consideration for this deed was that the Ackermanns 'take care of and provide the meals for the grantor (Mrs. Vordenbaum) as long as she lives'. These were the obligations referred to in the vendor's lien clause. The plaintiff asserted the agreement to support had not been carried out, but had been abandoned and consequently she was entitled to recover upon the superior legal title retained by her in the deed above mentioned.

Plaintiff's Second Amended Original Petition in the forepart thereof contained a number of exceptions directed against defendants' answer. These exceptions were followed by a repleading of her cause of action. The defendants moved to 'strike from the record the document called the second amended original petition for the reason that the same is not in compliance with Rules 46 and 69 of the Texas Rules of Civil Procedure'. Apparently the motion to strike was heard on May 21, 1964, but the order sustaining the same was not signed by the trial judge until December 14, 1964. It appears that on the same date the order was signed, the defendants made a further motion in which they requested the trial court to dismiss the case for want of prosecution because plaintiff had failed to amend her second amended original petition. The trial court sustained the motion to strike the second amended original petition and then dismissed the case. The order of dismissal was not based upon the theory that the plaintiff had failed to prosecute her case, but on the contrary recites that as 'plaintiff desires to stand on her pleadings and not to replead the same after having a reasonable opportunity to do so, it is further ordered that this cause be and the same is hereby dismissed, * * *.'

Undoubtedly, the second amended original petition was defective in the particulars pointed out by defendants' motion and we do not know why plaintiff did not amend her defective petition. However that may be, the only pleading which was stricken was the second amended original petition and if plaintiff decided not to file another amendment, such decision did not render the cause subject to dismissal. As pointed out by the Court of Civil Appeals, the trial court did not order a repleader and plaintiff had violated no order of the court. The ground set forth in the motion to strike related to form rather than substance and it was not contended that the petition failed to state a cause of action. We have no true analogy between the action taken here and the now outmoded general demurrer practice (Rule 90), in which a dismissal could be ordered upon a refusal to amend after a court had held that the petition stated no cause of action. We hold that the order of dismissal was erroneous and must be reversed.

This brings us to a consideration of the second question, that is, whether an order of rendition or remand constitutes the correct disposition of the case. This largely depends upon whether an appellate court having held that an order of dismissal was improper may then examine a trial court's action in overruling a summary judgment. In Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958), we held that:

'If the only order in the trial court is one overruling a motion for summary judgment, then that order is interlocutory and no appeal will lie therefrom. But when, as in this case, both parties file motions for summary judgment and one such motion is granted, then the trial court's judgment becomes final and appealable, and on appeal the Court of Civil Appeals should determine all questions presented. If reversible error is found, the court should render such judgment as the trial court should have rendered, Rule 434, and if the case is brought to this court and the judgment of the Court of Civil Appeals is reversed, we should render such judgment as that court should have rendered. Rules 501 and 505. Rogers v. Royalty Pooling Co. (Tex., 302 S.W.2d 938) is overruled.'

In the Tobin-Garcia case, the appeal was from an order granting a summary judgment based upon the defendants' motion. We held that the order granting such summary judgment was erroneous and that after having made such holding, we were authorized to review the trial court's action in overruling the plaintiff's motion for summary judgment. In the present case, an order of dismissal was appealed from instead of an order granting a motion for summary judgment.

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