Camden Fire Ins. Co. v. Hill

• Decision Date: 28 October 1925
• Docket Number: (No. 710-4274.)
• Citation: 276 S.W. 887
• Parties: CAMDEN FIRE INS. CO. v. HILL.
• Court: Texas Supreme Court

Page 887

276 S.W. 887

CAMDEN FIRE INS. CO. v. HILL.

(No. 710-4274.)

Commission of Appeals of Texas, Section A.

October 28, 1925.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by F. E. Hill against the Camden Fire Insurance Company. Judgment for plaintiff by default was, on defendant's petition in nature of bill of review, affirmed (264 S. W. 123), and defendant brings error. Reversed, and judgment rendered.

E. G. Senter, of Dallas, for plaintiff in error.

Weeks, Morrow & Francis, of Wichita Falls, for defendant in error.

Statement of the Case.

NICKELS, J.

Hill sued H. R. Denny and Camden Fire Insurance Company (alleged to be a foreign corporation, domicile undisclosed) March 16, 1921. Denny was supposed to be "local agent" of the company at that time and whatever service there was on the original petition was upon him personally and through him as "local agent" on March 21, 1921. Hill sued for $1,500, and interest, the amount of a fire insurance policy which it was claimed had issued, or should have issued, on his automobile or for damages in equal amount on the theory that he had signed an application for the policy and Denny had forwarded it (with the premium) to the company's state agents for "acceptance," etc., and Denny had promised, in that connection, to notify Hill if the company did not accept the application, upon which promise he relied, and because thereof he did not procure insurance from some other company. Denny was alleged to have authority to "solicit" insurance, take applications, receive premiums, etc.

No answer was filed up to that time, and on March 10, 1922, judgment by default (the loss, etc., being proved) was taken against the company for the amount sued for; Denny being discharged from liability.

March 7, 1922, alias citation was issued for the Camden Fire Insurance Association and served upon it, through its state agents at Houston, subsequently and prior to March 26, 1922. On March 28, 1922, the association filed its original answer, without knowledge of the default judgment. On March 30, 1922, it learned that a default judgment of some kind had been taken, but its attorney (on account of previous communications between him and Hill's attorneys, etc.) believed the judgment to be against Denny alone, but by letter of that date (mailed at Dallas) to Hill's attorneys at Wichita Falls, he called attention to the information received about the judgment, suggested its error, and inquired as to the facts. The term at which the judgment was taken expired by operation of law Sunday, April 2, 1922. Hill's attorneys replied to the inquiry just noted by letter dated April 3, 1922.

In June, 1922, the association filed an amended answer and as a part of it reconvened in damages, actual and exemplary, for the alleged wrongful and malicious taking of the default judgment. This pleading was substituted by a further amended answer and plea in reconvention November 11, 1922. On the same day (November 11, 1922) the association filed a pleading styled bill of review, praying notice, and praying for the setting aside of the default judgment on various grounds, amongst them the ground that Denny was not its agent in any capacity on March 21, 1921 (when the original service was had); all relations between him and the association having terminated January 28, last. Hill replied to the bill of review on the same day, and later in the day filed a supplemental reply to it.

The pleadings cover 69 pages of the transcript and with much iteration and elaboration they set forth the contention of the association and of Hill. It is sufficient here, we think, to summarize them by saying that Hill's claim of right to recovery, as originally set up, plus estoppel, and his prayer for recovery, were continued throughout his pleadings, and finally repleaded as basis of affirmative relief (as well as to show lack of "meritorious defense" against the default judgment on the part of the association) in reply to the bill of review, and by saying that the association generally and specially denied the making of any contract of insurance by Denny (as its agent or otherwise) and Hill, denied Denny's authority to make any such contract or promise as was sued on, denied that it had ever received the application or premium or that it ever heard of Hill's claim until after the fire, denied acceptance in fact of Hill's application, etc. The pleadings of both parties showed that the bank at Iowa Park, of which Denny was cashier, was substantially interested in the proposition of securing insurance and that Denny acted, in part as its agent, in substantial portions of the transaction out of which Hill's application grew, etc., and the association specially pleaded this (with its lack of knowledge thereof) as one reason why Denny had no authority to represent it in the matter and as a reason why whatever contract with, or promise to, Hill there was voidable as to it.

The case made by the various pleadings was tried in connection with trial of the bill of review December 4, 1922, evidence was heard on all issues, and judgment rendered denying relief sought in the bill of review and "confirming," etc., the default judgment of March 10, 1922. The association appealed, and on April 3, 1924, the Court of Civil Appeals, Seventh District, rendered an opinion of affirmance. 264 S. W. 123.

That opinion embraced a material finding of fact to the effect that the association had knowledge of the default judgment as early as March 21, 1922, and that finding related to (and was based upon) a certain letter whose date, as shown in the statement of facts, was March 21, 1922. This date, however, was incorrectly stated. The letter bore date March 27, 1922, and could not, under any circumstances, have been received by the association's attorney prior to March 28, 1922. The error had not been discovered by any of the parties until the opinion was filed. Thereupon the association asked leave to file in the Court of Civil Appeals motion for certiorari to correct the record. Time was given by that court to prepare the motion, and also to take such proceedings as were appropriate in the trial court to establish the error, etc. These proceedings were had, and a transcript thereof offered for filing in the Court of Civil Appeals. The transcript showed a judgment by the district court, reciting an agreement "in open court" that the error existed, and decreeing that the letter referred to did bear date of March 27, 1922, and that the error in the statement of facts was not due to the negligence of either party, etc. The Court of Civil Appeals declined to allow the transcript to be filed as a correction of the original record on appeal, for reasons stated in its opinion on rehearing. 264 S. W. 123. But that opinion contains a finding of fact that when the association filed its original answer on March 28, 1922, it did so without knowledge of the default judgment.

The case is in the Supreme Court on assignments properly raising the matters discussed below.

Opinion.

1. Article 1593, R. S. 1911, vests in Courts of Civil Appeals the power "to ascertain" (upon "affidavit or otherwise as by the courts may be thought proper") such "matters of fact as may be necessary to the proper exercise of their jurisdiction." Like provision is made for the Supreme Court in article 1525. That power, probably, inheres in a court without legislative fiat. Seiter v. Marschall, 105 Tex. 205, 147 S. W. 226; Cruger v. McCracken, 87 Tex. 584, 30 S. W. 537. The mistake in showing the date of the letter occurred in respect to a material issue. Its subject was a "matter of fact" essential "to the proper exercise" of appellate jurisdiction. The power to hear and determine is not "properly exercised" if conceded error of fact may influence, or contribute to influence, its direction. The paper offered to the Court of Civil Appeals embraced a certified copy of the district court's order reciting an agreement ("in open court") that the error exists. The fact, therefore, was shown as efficiently as it could have been shown "by affidavit," and the manner of its disclosure was such as that it could well have been deemed proper. In virtue of the terms of article 1593, the Court of Civil Appeals was authorized "to ascertain" the error of fact in that way (as it did, manifestly) and thereupon to make the finding (incorporated in the opinion on rehearing) to the effect that the association was without knowledge of the default judgment when, on March 28, 1922, it filed its original answer. That finding of fact is conclusive, and any supposed error in refusing to permit the paper to be filed as a part of the transcript and presented more formally is immaterial.

2. That finding, and the facts upon which it rests, inevitably result in acquitting the association, and its counsel, of negligence in respect to failure to move for new trial during the term of the default judgment. That term expired April 2, 1922. That day, being Sunday, was non juridicus. Hanover Fire Insurance Co. v. Shrader, 89 Tex. 35, 32 S. W. 872, 33 S. W. 112, 30 L. R. A. 498, 59 Am. St. Rep. 25; Shearman v. State, 1 Tex. App. 215, 28 Am. Rep. 402, and need not be counted. The Court of Civil Appeals made no finding as to the exact time when the association first learned of the judgment, but the record fairly shows it was on March 30, 1922, for on that day its attorney wrote a letter to Hill's attorneys in which he declared he had just received the information from the district clerk. When he received this information, and for good reason, he believed that the clerk's statement was either wholly erroneous or that it referred to a judgment against Denny alone. Pursuant to this belief, on March 30, 1922, he wrote and mailed to Hill's attorneys a letter, calling their attention to previous correspondence, conveying the clerk's message and its probable error, and requesting an answer. Those...