Bednarz v. State

• Decision Date: 15 December 1943
• Docket Number: No. 8177.,8177.
• Citation: 176 S.W.2d 562
• Parties: BEDNARZ et al. v. STATE.
• Court: Texas Supreme Court

Page 562

176 S.W.2d 562

BEDNARZ et al. v. STATE.

No. 8177.

Supreme Court of Texas.

December 15, 1943.

Rehearing Denied January 19, 1944.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by the State of Texas against John Bednarz and others. Judgment for defendants was reversed and the action was remanded for new trial by Court of Civil Appeals, 174 S.W.2d 743, and defendants bring error.

Judgment of Court of Civil Appeals reversed and judgment of district court affirmed.

O. F. Burney, of Floresville, for plaintiffs in error.

Wesley E. Seale, of Corpus Christi, for defendant in error.

ALEXANDER, Chief Justice.

This suit was brought by the State for the use and benefit of itself and certain other taxing units against John Bednarz, Mrs. A. D. Warnken, and others, to recover taxes alleged to be due on a lot and some gin machinery. The only material question relates to the sufficiency of the pleadings.

There is no question as to the sufficiency of plaintiff's petition. The defendants filed no written answer whatever. The judgment of the lower court was largely favorable to the defendants on the contested issues, and the plaintiff appealed. The Court of Civil Appeals reversed the judgment and remanded the cause for a new trial because of lack of pleadings on the part of the defendants. 174 S.W.2d 743.

As above stated, the defendants filed no answer whatever. However, the judgment recites that the parties appeared by their attorneys and orally agreed in open court as to what the issues were, and how some of the issues should be decided. They further agreed as to what some of the facts were with reference to the contested issues and that the court, without a jury, should hear further evidence on such contested issues. No objection whatever was made in the lower court to the failure of the defendants to file an answer.

It appears to be a well-established rule that where a case has been tried without objection upon the theory that the answer of the defendant was sufficient to join issues on the facts which were contested upon the trial, an objection that it was insufficient for that purpose cannot be made for the first time in the appellate court. Texas Employers' Ins. Ass'n v. Marsden, 131 Tex. 256, 114 S.W.2d 858; Southwestern Life Ins. Co. v. Powers, 132 Tex. 460, 122 S.W.2d 1056; Denison Cotton Mill Co. v. McAmis, Tex.Com.App., 215 S.W. 442; Texas & P. R. Co. v. Tomlinson, Tex.Civ.App., 169 S.W. 217, error dismissed; Tabet Bros. Co. v. Higginbotham, Tex.Civ.App., 170 S.W. 118; State Bank & Trust Co. v. W. O. Horn & Bro., Inc., Tex.Civ.App., 295 S.W. 698.

The holding above announced is strengthened by the provisions of Rules 67 and 90, which rules were adopted after the announcement of the cited decisions. Rule 90 provides in part as follows: "Rule 90. * * * Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by motion or exception in writing and brought to the attention of the Judge in the trial court before the instruction or charge to the jury or, in a nonjury case, before the rendition of judgment, shall be deemed to have been waived by the party seeking reversal on such account; * * *." Rule 67 provides in part as follows: "Rule 67. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. * * *" The above rules, we...