Associated Growers v. Smith
| Decision Date | 21 November 1951 |
| Docket Number | No. 12377,12377 |
| Citation | 244 S.W.2d 348 |
| Parties | ASSOCIATED GROWERS v. SMITH. |
| Court | Texas Court of Appeals |
Ward & Brown, Corpus Christi, for appellant.
Kleberg, Mobley, Lockett & Weil, Corpus Christi, for appellee.
This is an original proceeding brought by Associated Growers against Honorable Tillman Smith, Judge of the 94th District Court of Nueces County. The relator seeks a mandamus ordering the district judge to proceed to trial and judgment in a certain cause styled Associated Growers v. Guy A. Thompson, Trustee for St. Louis, Brownsville and Mexico Railway Company, and numbered 41793 on the docket of said court.
The appeal turns upon the nature of a judgment entered by the district court. If such order be interlocutory, then it would be the duty of the district judge to proceed to final judgment and this Court would be authorized to order him to so proceed, by virtue of the provision of Article 1824 Vernon's Ann.Civ.Stats. On the other hand, if the judgment be final, the writ obviously should not issue.
The question resolved itself into an inquiry as to the power of the district court, after the case has been submitted to a jury, to order a serverance of the separate claims or causes of action set forth in the counts of the petition, when each has separate issues applicable only to one count and in no way being interrelated to the other counts.
Associated Growers as plaintiff brought suit against Guy A. Thompson, Trustee for St. Louis, Brownsville and Mexico Railway Company. The petition contained four counts, each based upon separate and entirely disconnected shipments of tomatoes which originated in Brownsville, Texas.
The counts of the petition, the dates of shipment and numbers of the refrigerator cars are as follows:
Count I May 27, 1947, ART 22511
Count II June 9, 1947, PFE 51852
Count III June 11, 1948, SFRD 25196
The case was submitted to the jury upon special issues. The jury answered those relating ot Counts I and II, but were unable to agree upon those relating to Counts III and IV.
The court found by its judgment that 'Count I and Count II as made by the pleadings of the parties are actually two separate lawsuits, entirely independent of and unconnected with each other or with Count III and Count IV as made by the pleadings and that the jury answered all special issues as to said Count I, involving a shipment of tomatoes from Brownsville, Texas, May 27, 1948, in car ART 22511 ultimately consigned and delivered to Baltimore, and as to Count II, involving a shipment of tomatoes by Plaintiff from Brownsville, Texas, June 9, 1947, in car PFE 51582 ultimately consigned and delivered to Baltimore, * * *.'
Based upon this finding, it was ordered, adjudged and decreed:
'That Count I and Count II hereof be severed from Counts II and IV hereof which latter counts shall be re-docketed by the Clerk of this court as No. 41793 1/2-B, Associated Growers vs. Guy A. Thompson, Trustee, St. Louis, Brownsville & New Mexico Railway Company, Debtor, the sum of Ninety-Four and 90/100 Dollars ($94.90) plus interest from June 13, 1947, to date in the amount of Twenty-Three and 34/100 Dollars ($23.34) making a total of One Hundred Eighteen and 24/100 Dollars ($118.24) plus interest thereon at the rate of six percent (6%) per annum from date until paid, together with his costs in this behalf expended, as and for his damages for said shipment in car PFE 51582.
'That as to Count I, the shipment in car ART 22511, Plaintiff recover nothing and Defendant go hence without day.'
The trial court is vested with a broad discretion in regard to the consolidation and severance of claims. Rule 174, Rules of Civil Procedure, provides that 'The court in furtherance of convenience * * * may order a separate trial of any claim * * *.' The exercise of this power of severance is not precluded by the fact that special issues affecting the several claims involved have been submitted to the jury. The severance of distinct and separate claims does not amount to a trial of the case by piecemeal.
In Texas Cities Gas Co. v. Dickens, Tex.Civ.App., 133 S.W.2d 810, 812, the Waco Court, upon an appeal rather than upon an application for writ of mandamus, was presented with the problem of whether...
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