British General Ins. Co. v. Ripy, 1684-6910.

Decision Date23 June 1937
Docket NumberNo. 1684-6910.,1684-6910.
Citation106 S.W.2d 1047
PartiesBRITISH GENERAL INS. CO., Limited, et al. v. RIPY et al.
CourtTexas Supreme Court

On April 10, 1929, British General Insurance Company, Limited, plaintiff in error here, issued its policy of fire insurance on a residence owned by Mrs. J. A. Ripy. The policy contained a clause with loss payable to Josephine Vogel as her interest might appear. On June 3, following, Mrs. Ripy, joined by her husband, defendants in error, conveyed the property by warranty deed to E. C. Smith. The company was advised on June 6th of the conveyance, and on that date Mr. Ripy procured from the company the following acceptance of notice, which was indorsed upon the policy: "Notice accepted that title to the property insured is now vested in E. C. Smith, purchaser, to whom this policy is transferred subject to all terms and conditions of same."

Smith was sued along with the company, as was Josephine Vogel, who was alleged to be entitled to recover out of the proceeds of the policy the amount of a note for $700 which she held against the property. Smith filed a disclaimer, and plaintiffs subsequently, without causing Miss Vogel to be cited, dismissed her from the suit. The judgment directs that Smith go hence without day on his disclaimer.

The company interposed a general demurrer, and pleaded defensively on the merits that it was falsely and fraudulently represented that the property belonged to Smith; and further that the policy contained a warranty stipulating that the entire policy should be void if the assured had concealed or misrepresented any material facts or circumstances concerning the insurance, or if the interest of the insured in the property had not been truly stated therein. It pleaded also the policy provision to the effect that the policy would be void if the interest of insured in the property should be other than that of unconditional and sole ownership. Another defense pleaded was that O. P. Ripy, the husband, willfully set fire to the house and caused it to be destroyed by fire.

By supplemental petition the Ripys alleged that the company's defense based upon its allegation of false representations as to ownership of the property was without merit on account of its failure to give notice concerning same in the manner required by article 5044, R.C.S.1925.

The jury found against the company on its charge that Mr. Ripy burned the property, and found the building to be a total loss as a result of the fire.

The verdict was returned by the jury and received by the trial judge at the term of the court at which the trial began (March). The court took the verdict under advisement and did not render judgment thereon at that term of the court, nor at the next, but at the second succeeding term on October 27th rendered judgment for Mrs. Ripy. The Court of Civil Appeals affirmed the judgment. 80 S.W. (2d) 424.

We are not in accord with the holding of the Court of Civil Appeals that it was not ground for setting aside the judgment of the trial court that two terms of the court had elapsed after the verdict was received before judgment was rendered thereon.

The laws and rules governing practice and procedure in district courts prior to the passage in 1923 of the act (Acts 1923, c. 105 p. 215), governing practice and procedure in civil district courts in counties having two or more such courts and whose terms continue for three months or longer, were controlling in all district courts. A part of the 1923 act was subsequently incorporated in the 1925 revision of the statutes as articles 2092 and 2093. The court in which this case was heard is one of the class of courts covered by the act. Subdivision 28 of article 2092, as amended by Acts 1930, 5th called Sess. c. 70, § 1 (Vernon's Ann.Civ.St. art. 2092, subd. 28), reads: "A motion for new trial filed during one term of court may be heard and acted on at the next term of court. If a case or other matter is on trial or in process of hearing when the term of court expires, such trial, hearing or other matter may be proceeded with at the next term of the court. No motion for new trial or other motion or plea shall be considered as waived or over-ruled, because not acted on at the term of court at which it was filed, but may be acted on at the succeeding term or at any time which the Judge may fix or to which it may have been postponed or continued by agreement of the parties with leave of the court. All motions and amended motions for new trials must be presented within thirty (30) days after the original motion or amended motion is filed and must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by written agreement of the parties in the case, the decision of the motion is postponed to a later date."

It will be noted that no provision is made by the foregoing section to govern the trial court as to the requisite procedure beyond the "next term of court" after that at which the trial began, when the case is on trial upon expiration of such term. By the terms of the provision of subdivision 28 set out in the second sentence thereof, the trial may be proceeded with at the "next term" of court, but beyond that no provision is made. The act is silent as to the requisite procedure in event the case...

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13 cases
  • Shaw & Estes v. Texas Consol. Oils
    • United States
    • Texas Court of Appeals
    • 24 Enero 1957
    ...rely upon the recent case of Coats v. Garrett, Tex.Civ.App., 283 S.W.2d 289, which opinion follows British General Fire Insurance Co. v. Ripy, Tex.Com.App., 130 Tex. 101, 106 S.W.2d 1047. The Ripy case expressly approves the holding of this Court in Rouff v. Boyd, Tex.Civ.App., 16 S.W.2d 40......
  • City of Amarillo v. Henn
    • United States
    • Texas Court of Appeals
    • 4 Diciembre 1956
    ... ... Silverman, Tex.Civ.App., 209 S.W.2d 415, Syl. 6; British General Ins. Co., Limited v. Ripy, Tex.Com.App., 130 ... ...
  • Williams v. Wyrick, 12299
    • United States
    • Texas Court of Appeals
    • 5 Septiembre 1951
    ...Drane, Tex.Civ.App., 131 S.W.2d 672. But cf., Allied Store Utilities Co. v. Hunt, Tex.Civ.App., 148 S.W.2d 246; British General Ins. Co. v. Ripy, 130 Tex. 101, 106 S.W.2d 1047; Glasscock v. Pickens, Tex.Civ.App., 73 S.W.2d 992. Contra: Universal Life Ins. Co. v. Cook, Tex.Civ.App., 188 S.W.......
  • Jones v. Jimmerson
    • United States
    • Texas Court of Appeals
    • 18 Abril 1957
    ...In each of those cases there is an absence of an order extending the trial term. In one of the cases, British General Ins. Co. v. Ripy, Tex.Com.App., 130 Tex. 101, 106 S.W.2d 1047, 1049, consideration is given to Article 1923, V.T.C.S. which permits the trial judge in his discretion to exte......
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