Bolton's Estate v. Coats

• Decision Date: 09 October 1980
• Docket Number: No. 1290,1290
• Parties: ESTATE of W. Thomas BOLTON, Deceased, Appellant, v. Alton COATS et al., Appellees.
• Court: Texas Court of Appeals

Page 722

608 S.W.2d 722

ESTATE of W. Thomas BOLTON, Deceased, Appellant, v. Alton COATS et al., Appellees.

No. 1290.

Court of Civil Appeals of Texas, Tyler.

Oct. 9, 1980.

Rehearing Denied Nov. 26, 1980.

Joseph P. Witherspoon, John McC. Witherspoon, Austin, Tom Bankhead, Bankhead & Davis, Carthage, John E. Powers, Powers & Rose, Austin, for appellant.

Wm. C. Slusser, Baker & Botts, Houston, Jack B. Strong, Longview, H. Carter Burdette Cantey, Hanger, Gooch, Cravens & Munn, Fort Worth, Ralph Shank, Shank, Irwin, Conant, Williamson & Grevelle, Dallas, for appellees.

SUMMERS, Chief Justice.

This is a suit for money damages and other relief arising out of the operation of oil and gas leases in Panola County, Texas, which was previously before this court on appeal from a summary judgment granted appellees, Tex.Civ.App., 514 S.W.2d 482. We affirmed and the Texas Supreme Court in 1976 reversed and remanded the case to the trial court for trial on the merits, 533 S.W.2d 914.

W. Thomas Bolton, now deceased, was the owner of certain oil and gas leases in Panola County which had been assigned to him by Johnny Mitchell. Bolton later assigned his interest in these leases to Alton Coats and Olin Mathieson Chemical Corporation, appellees herein.

Coats, et al. (appellees) drilled a well upon the lease known as the No. 1 Cornelius Evans. The Texas Railroad Commission classified the well as a gas well. The executors of Bolton's estate claim that oil in paying quantities was produced from the well and that such information was wrongfully concealed from Bolton and the Railroad Commission resulting in loss of income to the estate.

This action was originally filed on May 27, 1964, and has been pending for more than sixteen (16) years without resolution. The case was previously dismissed for want of prosecution on January 8, 1969, and subsequently reinstated on January 27, 1969.

Following remand by the supreme court in 1976, the regular district judge recused himself, another judge was executed, a third heard several matters but was subsequently excused, and lastly, Judge Claude Williams was appointed by the supreme court to try the case. On May 2, 1978, Judge Williams ordered the cause stayed until Johnny Mitchell was made a party to the suit. Upon appellants' (Bolton executors) failure to join Mitchell as a party and due to their failure to diligently prosecute the suit, the court on January 10, 1979, entered its order dismissing the suit for want of prosecution.

On January 17, 1979, the Bolton executors filed a Motion for Reinstatement of the case. Later, on February 7, 1979, they deposited cash in lieu of bond with the district court clerk pursuant to Rule 354, ¹ perfecting their appeal from the dismissal order on January 10. The Bolton executors admit in their pleadings that their appeal is from this order. On the day following perfection of their appeal, February 8, 1979, Judge Williams overruled the executors' Motion for Reinstatement within the 30-day period allowed by Rule 165a. No appeal bond or substitute therefor was filed thereafter. There are no findings of fact or conclusions of law.

We affirm.

Appellees have filed a motion to dismiss this appeal for want of jurisdiction. The motion to dismiss was set for argument along with the merits of the appeal.

In their motion, appellees argue that the January 10 order of dismissal appealed from is neither a final judgment within the meaning of Article 2249, ² nor is it an interlocutory order appealable within the meaning of Article 2250, nor is it otherwise appealable in accordance with any rule or statute of the State of Texas. We do not agree.

All parties to this suit as well as this court are in agreement that there can be only one final judgment in a cause from which an appeal will lie. Northeast Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966); Dickson & Associates v. Brady, 530 S.W.2d 886 (Tex.Civ.App.-Houston (1st Dist.) 1975, no writ). The immediate question to be decided herein is whether the January 10 order dismissing the case for want of prosecution or the February 8 order denying reinstatement of the case is the final judgment. We hold that the dismissal order from which the Bolton Executors perfected their appeal is the final judgment in this case.

An order of dismissal for want of prosecution is a final judgment where no motion to reinstate is filed, tardily filed or no bill of review is filed assailing the order. Texas State Board of Examiners in Optometry v. Lane, 337 S.W.2d 801 (Tex.Civ.App.-Fort Worth 1960, writ ref'd); State Bar of Texas Professional Development Program, Appellate Procedure in Texas 102 (2d ed. 1979). In Atoka v. Thornton, 566 S.W.2d 686 (Tex.Civ.App.-Eastland 1978, no writ) where no Motion for Reinstatement had been filed within six months of a dismissal for want of prosecution as provided by Rule 165a, the court held that the trial court was without jurisdiction to reinstate the case and thus the order of dismissal, having disposed of all parties and issues, was a final judgment for purposes of appeal. See also, Green v. Green, 288 S.W. 406 (Tex.Comm'n App. 1926, holding approved); Hartman v. Byrd, 47 S.W.2d 659 (Tex.Civ.App.-Texarkana 1932, no writ). A judgment of dismissal is considered a final judgment. First National Bank of Houston v. Fox, 121 Tex. 7, 39 S.W.2d 1085, 1086 (1931).

While no case has directly addressed the finality question where appeal is made from an order of dismissal for want of prosecution and a timely motion for reinstatement has been made and overruled and no appeal bond filed thereafter, by analogy to a motion for new trial, it is reasonable to hold that the earlier dismissal order is the final judgment. A judgment of dismissal is final for the purposes of an appeal and a motion to reinstate is ordinarily accorded the legal effect of a motion for new trial. Hancock v. Gathright, 451 S.W.2d 591 (Tex.Civ.App.-Waco 1970, no writ); Chicago R.I. & P.R. Co. v. Southern Pacific Co., 458 S.W.2d 234 (Tex.Civ.App.-Houston (1st Dist.) 1970, writ ref'd n.r.e.); Stuart v. City of Houston, 419 S.W.2d 702 (Tex.Civ.App.-Houston (14th Dist.) 1967, writ ref'd n.r.e.); 4 R. McDonald, Texas Civil Practice § 17.19 (1971).

Regarding motions for new trial, the Texas Supreme Court in Puckett v. Frizzell, 402 S.W.2d 148 (Tex.1966) noted that the appeal is from the judgment, not from the order overruling the motion for new trial. In that case, decided under old Rule 353 which required the filing of a notice of appeal as well as an appeal bond, the appellant had given his notice of appeal embodied in the judgment. A motion for new trial was filed 7 days after the judgment and overruled within 30 days. No further notice of appeal was given. Within 30 days of the overruling of the motion for new trial (but not within 30 days of the original judgment) the appellant put up cash in lieu of an appeal bond. The court of civil appeals held that the appeal was not perfected since the appellant had failed to file a second notice of appeal after the overruling of the motion for new trial. The supreme court disagreed saying:

The appeal in such case is an appeal from the judgment. The appellants' purpose in so appealing is to avoid the effect of the judgment which has been rendered against him. The filing of the motion for new trial and the order overruling it are steps in the accomplishment of that purpose. The appeal is after but not from the order overruling the motion. Id., at 151. (Emphasis theirs.)

The court went on to note that an appeal is perfected in cases such as this when there is a notice of appeal, motion for new trial which is duly filed and overruled, and when the appeal bond, or cash in lieu of bond, is filed. Rule 356 says an appeal bond or its equivalent shall be filed within 30 days of the judgment or order overruling a motion for new trial which was done in that case. The giving of notice of appeal was not premature under Rule 306c; that rule says that the notice or bond shall be deemed to have been given after the overruling of a motion for new trial. Thus, the appeal was held to have been duly perfected.

Since a motion to reinstate is closely allied to a motion for new trial, the Puckett case is guiding authority. Here, as there, the appeal is from the judgment which dismissed the case, not from the order overruling the motion to reinstate. The Bolton executors perfected their appeal by filing cash in lieu of bond, albeit before determination of the motion to reinstate; however, the finality of a judgment is not affected by the making and overruling of a motion to set a judgment aside or by the pendency or the making and overruling of a motion for new trial. 4 Tex.Jur.3d Appellate Review § 54 (1980). The argument proffered by appellees that the judgment pending resolution of the motion to reinstate is not final is therefore without merit. For purposes of appeal, the January 10 dismissal order was a final judgment. Golden Rod Oil Co. v. Golden West Oil Co., 293 S.W. 167, 168 (Tex.Comm'n App. 1927, holding approved).

Additionally, it is substantially appellees' position that when a Motion for Reinstatement has been filed, the movant should wait until the trial court has completely finished before perfecting his appeal. Rule 306c answers this contention. That rule states: "No ... appeal bond ... shall be held ineffective because prematurely filed; but every such ... appeal bond ... shall be deemed to have been filed on the date of but subsequent to the rendition of the judgment appealed from or from the date of the overruling of motion for new trial, if such a motion is filed." Since a motion for reinstatement is in legal effect the equivalent of a motion for new trial, under Rule 306c, an appeal bond or its equivalent is deemed to have been filed after overruling of the motion and is not to be considered premature. Thus, the Bolton executors' appeal was perfected at the time of the...