Burnaman v. Heaton
| Decision Date | 21 June 1950 |
| Docket Number | No. 12108,12108 |
| Citation | 231 S.W.2d 1006 |
| Parties | BURNAMAN v. HEATON et al. |
| Court | Texas Court of Appeals |
Kelley, Looney, McLean & Enochs, Edinburg, Geo. W. Eddy, Houston, for appellant.
Taylor, Cox, Wagner & Adams, Brownsville, Gordon Gibson, Laredo, for appellees.
This suit is by Mrs. Frances Burnaman against Mrs. Jan Higdon Peabody Heaton and her husband, W. P. Heaton, for damages and personal injuries resulting from an automobile collision between an automobile owned and being driven by Mrs. Jan Higdon Peabody Heaton, one of the appellees, and an automobile owned and being driven by the appellant, Mrs. Frances Burnaman. On March 21, 1949, while the case was proceeding to trial and while the jury was waiting to be selected, the parties, acting throught their attorneys of record, announced in open court that the suit had been settled and compromised and that judgment was to be entered for the appellant and against the appellee for the sum of $10,000 and court costs. This announcement was noted by the trial judge upon his docket and he then proceeded to take up other cases for trial. At the suggestion of one of the attorneys for the appellee 'the sum of $10,000.00 and costs' was erased from the docket, leaving the notation 'case settled and compromised.' Again, on March 23, 1949, the parties, acting through their attorneys, announced in open court that the case had been settled and that the court should proceed to render judgment for the plaintiff against the defendant in the sum of $10,000 and court costs, whereupon the court proceeded to make the following entry upon the docket:
'March 23, 1949
Plaintiff and Defendant announce in open Court that Plaintiff do have and recover of and from Defendant the sum of $10,000.00 and costs as per decree to be entered. 6-564.'
This docket entry was later entered upon the minutes of the court. On March 31, 1949, the court received a letter from appellant stating that the settlement was unacceptable to her and that it had been agreed upon by her attorneys without her consent; whereupon the court, on its own motion, set down for hearing the matter of entering a judgment in accordance with the compromise agreement for May 2, 1949, and issued notice to the parties to show cause why judgment should not be entered in accordance with the compromise agreement. Thereafter the defendant filed a motion for judgment in keeping with the agreement and ultimately a hearing was had on December 12, 1949, and judgment was entered in favor of plaintiff and against defendants in the sum of $10,000. Among other things, this judgment further provided that the sum of $6,666.67 should be paid to the plaintiff and the sum of $3,333.33 should be paid to the law firm of Carter and Stiernberg as attorney's fees. Mrs. Frances Burnaman has prosecuted this appeal from that judgment.
Appellant's first contention is that the court erred in entering judgment on the 12th day of December, 1949, based on the alleged compromise or settlement agreement announced in open court on March 23, 1949, because such alleged compromise or settlement argeement was not reduced to writing or entered on the record on March 23, 1949, the date on which it was allegedly made by the attorneys for the parties to this suit. Appellant bases her contention on the provisions of Rule 11, Texas Rules of Civil Procedure, which reads as follows: 'No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.'
In support of her contention appellant cites the case of Wyss v. Bookman, Tex.Com.App., 235 S.W. 567, and Behrens v. Behrens, Tex.Civ.App. 186 S.W.2d 697. These cases are good authority for the proposition that even though a settlement agreement is announced in open court, if it is not reduced to writing, signed and filed among the papers of the case, or is not recorded in the minutes of the court, it can not be the basis for the rendition of a judgment at a later date where a dispute arises as to the existence of the agreement or as to its terms. In those cases there was a serious dispute as to the terms of the agreement and as to whether or not all of the terms of the judgment to be entered had been agreed upon. In the present case it seems that the stipulation was sufficiently broad to cover all of the essential provisions of a final judgment in the case, and further there was no...
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Burnaman v. Heaton
...and an automobile driven by Mrs. Heaton. A trial court judgment in favor of respondents was affirmed by the Court of Civil Appeals, 231 S.W.2d 1006. For convenience, the parties shall hereafter be referred to as plaintiff and defendants. The original attorneys for the respective parties sha......
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Owen v. Finigan, 3896
...was not an agreed judgment and should have been set aside. Behrens v. Behrens, Tex.Civ.App., 186 S.W.2d 697. In Burnaman v. Heaton, Tex.Civ.App., 231 S.W.2d 1006, 1007, the Court "These cases are good authority for the proposition that even though a settlement agreement is announced in open......
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Cureton v. Robbins
...was not an agreed judgment and should have been set aside. Behrens v. Behrens, Tex.Civ.App., 186 S.W.2d 697. In Burnaman v. Heaton, Tex.Civ.App., 231 S.W.2d 1006, 1007, the Court 'These cases are good authority for the proposition that even though a settlement agreement is announced in open......