California and Hawaiian Sugar Co. v. Bunge Corp., 17474
| Decision Date | 15 November 1979 |
| Docket Number | No. 17474,17474 |
| Citation | 593 S.W.2d 739 |
| Parties | CALIFORNIA AND HAWAIIAN SUGAR COMPANY, Petitioner, v. BUNGE CORPORATION, Respondent. (1st Dist.) |
| Court | Texas Court of Appeals |
Eiken & Davey, Robert Eikel, Houston, for petitioner.
McLeod, Alexander, Powel & Apffel, James L. Ware, Galveston, for respondent.
This petition for a writ of error arises out of a suit by Biehl and Company, (Biehl), a steamship agent, against Bunge Corporation, (Bunge), a wharf and grain elevator operator, seeking an injunction. A temporary injunction was issued and Bunge cross-acted for wharfage fees. The main action was settled and the cross-action was tried to the court which granted Bunge a judgment. California and Hawaiian Sugar Company, owners of the "Sugar Islander," the ship in question, brings this writ of error.
Bunge filed a motion to dismiss this writ on the grounds that petitioner was not a party to the proceeding below, or a party of record and thus has no standing to bring the writ. A writ of error can only issue at the instance of a party to the suit, or of one whose privity of estate, title, or interest appears from the record of the cause in the court below, or who may be the legal representative of such party. Smith & James v. Gerlach, 2 Tex. 424 (1847); Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.1965); Hubbard v. LaGow, 567 S.W.2d 489 (Tex.1978).
The general rule is that one must be a party to a lawsuit but did not participate in the suit in order to have standing to bring writ of error. Tex.Rev.Civ.Stat.Ann. art. 2249a (Vernon 1971); Industrial Generating Company v. Jenkins, 410 S.W.2d 658 (Tex.Civ.App. Austin 1966, no writ). There are three exceptions to the general rule, (1) a class action; (2) a will contest; (3) suits wherein the parties come under the doctrine of virtual representation. The first two exceptions are inapplicable here. Our inquiry is whether petitioner is covered by the doctrine of virtual representation. The test is whether the petitioner is bound by the judgment of the trial court by virtue of the fact that it was "represented" by Biehl. Grohn v. Marquardt, 487 S.W.2d 214 (Tex.Civ.App. San Antonio 1977, writ ref'd n. r. e.).
The records shows that the berthing agreement and tariff provided that the owners of the vessel were liable to Bunge for the charges in question. Bunge's assistant manager testified that he was aware that his contract was with the ship's owner as...
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