Calame v. Prudential Ins. Co. of America

• Decision Date: 18 January 1968
• Docket Number: No. 4658,4658
• Citation: 423 S.W.2d 940
• Parties: Opal Chesnutt CALAME et vir, Appellants, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, General Motors Acceptance Corporation and Gordon Rountree Motors, Ltd., Appellees. . Waco
• Court: Texas Court of Appeals

Page 940

423 S.W.2d 940

Opal Chesnutt CALAME et vir, Appellants, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, General Motors Acceptance Corporation and Gordon Rountree Motors Ltd., Appellees.

No. 4658.

Court of Civil Appeals of Texas Waco.

Jan. 18, 1968.

Flahive & Ogden, R. M. Ogden, Austin, for appellant.

McLaughlin, Clark, Fisher, Gorin & McDonald, Bryan, Wilson, Olson & Stem, Waco, for appellee.

OPINION

WILSON, Justice.

Appellants sued three defendants, all of whom filed motions for summary judgment. The motion of the first defendant was sustained and an interlocutory take-nothing judgment was rendered as to that defendant June 1, 1967. On June 9, 1967, a telegram apparently sent by appellants' attorney directed to the trial judge was delivered to the judge's office. It referred to the cause number, and read: 'Please note our objection to granting of motion for summary judgment in favor of' the first defendant. 'We will appeal this order if necessary at rendition of final judgment against' the other two defendants.

By summary judgment rendered August 16, 1967, it was ordered that appellants take nothing against the other two defendants.

A letter from appellants' counsel dated August 4, 1967 addressed to the trial judge was received by the judge August 7, 1967. It gave the style and number of the cause, and stated: 'We have your letter of July 31, 1967. This is to serve notice that the plaintiffs intend to appeal the motion for summary judgment granted in favor of the' two defendants. 'We have previously given notice of our intention to appeal motion for summary judgment in favor of' the first defendant. The letter indicates a copy was sent to appellees' counsel. There are other unauthenticated letters included in the transcript, which are not a part of the record, and which cannot be considered by us.

Appellees say that under these facts no notice of appeal was given as required by Rule 353, Texas Rules of Civil Procedure, and we have no jurisdiction.

The Rule authorizes two methods of giving notice of appeal: (1) in open court as therein provided, or (2) 'filed with the clerk.' A notice of the latter type 'shall be sufficient if it state the number and style of the case, the court in which pending, and that appellant desires to appeal from the judgment or from some designated portion thereof.'

The Rule 'will be liberally construed in favor of the right of appeal.' Hunt v. Wichita County Water Improvement Dist. No. 2, 147 Tex. 47, 211 S.W.2d 743, 744.

The telegram alone obviously does not comply with the Rule. Neither letter nor telegram was filed with the clerk; but Rule 74, prescribing that papers required by the Rules shall be filed with the clerk, provides an alternative: 'that the judge may permit the papers to be filed with him.' In our opinion, application of the rule is not confined to pleadings, as appellee contends.

The telegram and letter were prematurely filed; both antedated the final judgment. Rule 306c declares, however, that no 'notice of appeal shall be held ineffective because prematurely filed.'

When a liberal construction of the Rules is applied to the letter it is sufficient, in our opinion, to constitute an effective notice of appeal. Appellees' contention is overruled.

Plaintiff, Mrs. Calame, sued the appellees, Prudential, General Motors Acceptance Corporation and an automobile dealer. She asserted rights as a third-party beneficiary under a contract entered into by her elderly brother-in-law, J. E. Carson, deceased.

The petition alleged facts as follows: Carson applied to and obtained creditor's life insurance on his life under a group policy issued by Prudential in favor of G.M.A.C. to secure payment of part of the purchase price of an automobile bought from defendant dealer and financed by G.M.A.C. The parties had made similar contracts in prior years by which plaintiff became the registered owner of the automobiles, paying half of the purchase price and half of the credit insurance premiums. It was 'the understanding with' the dealer that she had such interest in the automobile, and the dealer agreed that the present purchase would be 'the same deal' as the previous car purchases, and that if Carson died before extinguishment of the debt and lien, G.M.A.C. would be paid by Prudential....