Brazos River Gas Co. v. McGarr

• Decision Date: 07 January 1938
• Docket Number: No. 1737.,1737.
• Citation: 113 S.W.2d 643
• Parties: BRAZOS RIVER GAS CO. v. McGARR.
• Court: Texas Court of Appeals

Page 643

113 S.W.2d 643

BRAZOS RIVER GAS CO. v. McGARR.

No. 1737.

Court of Civil Appeals of Texas. Eastland.

January 7, 1938.

Appeal from Palo Pinto County Court; J. Pat Corrigan, Judge.

Suit by W. H. McGarr against the Brazos River Gas Company, for damages to machinery caused by alleged defective repair work done by defendant. From a judgment on a verdict for plaintiff, defendant appeals.

Affirmed.

W. H. Penix, of Mineral Wells, for appellant.

Scarborough & Ely, of Abilene, for appellee.

GRISSOM, Justice.

In December, 1934, W. H. McGarr and the Brazos River Gas Company entered into a written contract whereby the gas company agreed to pay to McGarr $5 per day for the use of his (McGarr's) oil well drilling machine, known as a spudder, and tools used in connection therewith, in the drilling of an oil well by the gas company. McGarr was also employed as a driller. The contract contained the following provision: "The Brazos River Gas Company will keep up the repairs on your machine, tools and equipment as, if and when needed, so long as same are used by said company." In January, 1935, the spudder was damaged by fire. The gas company immediately proceeded to repair the spudder. After the repairs had been made, McGarr claimed that it was improperly and defectively repaired and sued the gas company for the alleged difference in the value of the machine prior to the fire and after the repairs had been made.

The cause was submitted to the jury upon special issues and in answer thereto the jury found, among other things, in substance, as follows: (1) That the spudder was of less value after it was repaired than just prior to the fire; (2) that the difference in the reasonable market value of the spudder just preceding the fire and after it had been repaired by the gas company was $200. Upon the verdict of the jury judgment was rendered for McGarr against the gas company for the sum of $200, from which judgment the gas company has appealed and presents numerous assignments of error.

The case was tried on October 12, 1936, and judgment entered the following day. Prior to the trial the commissioners court of Palo Pinto county, Tex., had entered its order purporting to fix the terms of the county court of Palo Pinto county, the pertinent portion of which is as follows:

"Therefore, it is the order of this court that the County Court of Palo Pinto County, Texas, shall hold six terms of court each year commencing on the first Monday in February, April, June, August, October and December, and each of said terms shall continue in session three weeks or until the business shall have been disposed of; provided that no term of said court shall continue beyond the date fixed for the commencement of its new term, except upon an order entered on its minutes during the term extending the term for any particular causes therein specified."

Appellant contends that the trial of this case was illegal and the judgment entered void because said order fixing the terms of said court fails to fix definitely the length of the terms thereof. If said order fixing the terms of said court is ineffective, then, under the next preceding order of the commissioners court fixing the terms of said county court, it would not have been in session at the time of the trial of this case. Appellant cites only article 1962, R.S.1925, in support of its contention. Said article is as follows:

"The commissioners court may, at a regular term thereof, by an order entered upon its records, provide for more terms of the county court for the transaction of civil, criminal and probate business, and fix the times at which each of the four terms required by the Constitution, and the terms exceeding four, if any, shall be held, not to exceed six annually, and may fix the length of each term. When the number of the terms of the county court has been fixed, the court shall not change the order before one year from the date of entry of the original order fixing such terms."

It will be noted that the only provision of said article pertinent to the present inquiry is that the commissioners court "may fix the length of each term." There is nothing in said article that prohibits the fixing of the length of a term at a certain period of time with a provision that under certain circumstances the term may be of a different length or period of time. We construe said order of the commissioners court to mean, as applied to the fact situation presented, that a term of court shall commence on the first Monday in October and continue for three weeks, but, if the business of said court has not then been disposed of, it may continue in session until its business is disposed of, provided that it shall terminate in all events by the time fixed for the commencement of its new term. As applied to the facts here presented, it provides that the October term must end on or before the first Monday in December following. Should we be in error in said construction, we think, said order certainly provides for a term of court of at least three weeks commencing on the first Monday in October, 1936. This case was tried and judgment entered therein on October 12th and 13th, respectively, which would be the first two days of the second week of such three-week term. Therefore, said cause was tried and judgment entered during said definite three-week period. The facts of the instant case do not require a construction of the last portion of the quoted provision of said order, which apparently provides for the extension of the term of said county court by an order entered on its minutes "for * * * particular causes therein specified" into the next succeeding term of said court. We find no authority for such extension of a term by a county court, but, in view of the fact that the judgment was not rendered at an extended term, we are not called upon to pass upon such question.

We do not sustain the appellant's contention that the length of the terms of said court as fixed by the order of the commissioners court is so vague and indefinite as to cause the judgment herein rendered during the second week of said term to be void. The assignment is overruled. Alexander v. State, 84 Tex.Cr.R. 75, 204 S.W. 644.

Appellant assigns as error the action of the court in overruling its general demurrer to plaintiff's amended petition. Appellant asserts that the petition does not affirmatively allege that the spudder was ever delivered to it, and alleges, if at all, only inferentially that it was ever in the possession of the gas company. We think the pleadings of the parties sufficiently show the delivery to and possession by the gas company of the spudder in question. The gas company in its amended answer alleged that it "received said machine." Appellant states that the agreement alleged by the appellant made the gas company a bailee and McGarr a bailor for their mutual benefit; that the general demurrer should have been sustained for the reason that it was not alleged that the damage to the spudder was occasioned by the negligence of the appellant gas company. We think the authorities cited by appellant are not applicable to the present situation. The appellee's cause of action was a suit for...