Bowie Sewerage Co. v. Watson

• Decision Date: 06 May 1925
• Docket Number: (No. 2474.)
• Citation: Bowie Sewerage Co. v. Watson, 274 S.W. 179 (Tex. App. 1925)
• Parties: BOWIE SEWERAGE CO. v. WATSON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

274 S.W. 179

BOWIE SEWERAGE CO. v.WATSON.^*

(No. 2474.)

Court of Civil Appeals of Texas. Amarillo.

May 6, 1925.

Rehearing Denied June 17, 1925.

Appeal from District Court, Montague County; Paul Donald, Judge.

Action by O. W. Watson against the Bowie Sewerage Company, wherein defendant impleaded the City of Bowie and others.Judgment in favor of plaintiff against defendant alone, and defendant appeals.Appeal dismissed.

W. L. Blanton and W. S. Moore, both of Gainesville, and Theodore Mack, of Fort Worth, for appellant.

Benson & Benson and Chancellor & Bryan, all of Bowie, for appellee.

HALL, C. J.

Appellee Watson filed this suit against the Bowie Sewerage Company, appellant, to recover damages on account of the fact that the appellant maintained a nuisance on its premises adjacent to land owned by the appellee, and polluted a stream which ran through the premises of both parties.

The appellant impleaded the city of Bowie, E. O. McNew, and W. D. Smith, alleging that the city of Bowie maintained a dump ground for refuse near appellee's premises, the drainage from which emptied into the creek, and that Smith, as the tenant of McNew, maintained hogpens and other objectionable nuisances upon lands adjacent to the creek, the refuse from which contributed to the pollution of the stream, and prayed that these three be made partiesdefendant to the action.It is not alleged that the impleaded parties, or either of them, were joint tort-feasors, nor does appellant pray for a judgment over against either.The plaintiff filed no amended pleadings asking any damages against the impleaded parties.Even if it had been alleged that the three parties were joint tort-feasors, each would be liable for the whole amount of the damage, and the appellee might have sued them jointly or severally for the whole sum claimed to be due.The effect of the allegations in the answer is that the impleaded parties acted separately and independently, and not in concert.Each would be liable only for such damage as might be the result of his own act.

The court sustained exceptions to the pleading of defendant, attempting to join as defendants, the impleaded parties, and noted upon the docket of the court its action in dismissing them from the suit.No judgment was entered upon the minutes of the court at that time declaring the court's action.A trial resulted in favor of the appellee Watson against the appellant alone.

After appellant had perfected its appeal and filed the record in this court, the appellee moved to dismiss the appeal, because appellant had failed to brief the case in accordance with the rules and the stipulation of counsel.Upon the filing of this motion, appellant made no effort to brief the case, but filed a motion here to dismiss the appeal upon the ground that no final judgment disposing of the impleaded parties had been rendered in the trial court.This motion was not called to the attention of appellee's counsel until submission day, whereupon appellee moved the court to postpone submission, alleging that judgment had been rendered in the trial court dismissing the impleaded parties, and praying that he be granted sufficient time to have such judgment duly entered upon the minutes, and to perfect the record by certiorari showing that fact.This motion was granted.

The record shows that the trial judge entered an order upon his docket sustaining the exceptions of the impleaded parties, and dismissed them from the case, to which action the appellant has reserved a bill of exceptions, stating the facts.Under such circumstances, it is clearly the right of appellee, if a final judgment was rendered at a former term, to have such judgment entered nunc pro tunc, and to perfect the record, so as to show a final judgment of which this court would take jurisdiction.A final judgment has been entered in the court below, and the case is now before us with the record duly perfected, and comes up for disposition upon appellee's motion to dismiss because of appellant's failure to properly brief the case.A...