City of Mesquite v. Rawlins

• Decision Date: 27 January 1966
• Docket Number: No. 179,179
• Citation: 399 S.W.2d 162
• Parties: CITY OF MESQUITE, Appellant, v. John A. RAWLINS, Appellee.
• Court: Texas Court of Appeals

Page 162

399 S.W.2d 162

CITY OF MESQUITE, Appellant, v. John A. RAWLINS, Appellee.

No. 179.

Court of Civil Appeals of Texas, Tyler.

Jan. 27, 1966.

Rehearing Denied Feb. 24, 1966.

Tim Kirk, Saner, Jack, Sallinger & Nichols, Dallas, for appellant.

Robert Lee Guthrie, Johnson, Guthrie, White & Stanfield, Dallas, for appellee.

DUNAGAN, Chief Justice.

The City of Mesquite, appellant, instituted this suit against the appellee, John A. Rawlins, for delinquent taxes for the years of 1962 and 1963. The appellee, in addition to his answer, filed a cross action for damages against the appellant alleging that it had illegally, negligently and improperly installed new paving obstructing a drainage ditch which diverted the natural flow of service waters causing defendant's houses and lots adjacent thereto to be flooded with water, which has caused the piers and foundations to rot and the land to remain wet and soggy over long periods of time. The case was tried before a jury, and upon the findings of the jury to Special Issues a judgment was signed and entered on March 1, 1965, that the appellee take nothing by his cross action from which judgment no appeal was perfected; and, awarding appellant judgment in the sum of $2,588.56 for taxes due it for the years of 1962 and 1963 being less than the amount the appellant claimed was due and owing, from which judgment appellant duly perfected its appeal. Appellant is seeking to have this court render judgment for the additional amount of taxes, penalty, interest and attorney's fees sued for which was not recovered by the judgment.

On March 11, 1965, the appellee, John A. Rawlins, wrote Mr. Jimmie Mormon whom the record shows is the Tax Assessor-Collector for the City of Mesquite, as follows:

'March 11th, 1965.

'Mr. Jimmie Mormon, Tax Department, City of Mesquite, Texas.

'Dear Sir:

'RE: Cause Number 78308-I

City of Mesquite, Plaintiff versus John A. Rawlins, Defendant.

'By final judgment, dated March 1, 1965, plainiff was awarded the amount of $2588.56 covering 1962 and 1963 taxes on real estate owned by defendant within the city.

'I enclose herewith CASHIER'S CHECK on the EMPIRE STATE BANK OF DALLAS, numbered A 92020, in payment thereof.

'Very truly yours,

/s/ J. A. Rawlins'

Appellee received from the Tax Department of the appellant a receipt dated March 12, 1965, the following portion written in longhand, which reads:

'Received from John A. Rawlins Cashiers Check Re $2,588.56 for 1962 & 1963 taxes awarded by court.'

The following correspondence between the attorneys for the parties followed:

'March 15, 1965

'Mr. Robert Lee Guthrie

Attorney at Law

Republic National Bank Building

Dallas 1, Texas

'Re: Rawlins vs. City of Mesquite

'Dear Mr. Guthrie:

'The City of Mesquite has received a Cashier's Check from Judge Rawlins in the amount of $2,588.56. In his letter he stated that it was the amount determined by a final judgment dated March 1, 1965.

'Since we are in the process of appealing this case, please advise me whether or not you desire that we retain this check without prejudice to the rights of parties on either side, or whether you desire that we return it to Judge Rawlins. It is my understanding that if the check is retained there will be no additional penalty or interest.

'I will hold the check until I hear from you.

'Very truly yours,

SANER, JACK, SALLINGER & NICHOLS

By ________

H. Louis Nichols'

'March 16, 1965

'Mr. H. Louis Nichols

Attorney at Law

1200 Republic National Bank Bldg.

Dallas, Texas

'Re: No. 78,808-I

City of Mesquite vs. John A. Rawlins

'Dear Louis:

'In reply to your letter of March 15, 1965, Judge Rawlins says he intended for the cashier's check in the sum of $2,588.56 to be a tender of the amount due on the above judgment. He used a cashier's check because he thought this would be more convenient for the City, as well as for himself. If the City objects that the tender was not made in cash, he will be glad to pick up the check and substitute cash therefor. Judge Rawlins wishes to preserve all the rights that such tender gives him.

'Sincerely yours,

Bob

Robert Lee Guthrie'

'March 17, 1965

'Mr. Robert Lee Guthrie

Attorney at Law

1410 Republic National Bank Building

Dallas, Texas 75201

'Re: No. 78308-I, City of Mesquite vs. John A. Rawlins

'Dear Bob:

'Thank you very much for your letter of March 16, regarding the payment of the judgment in the above styled case. The Cashier's Check is perfectly satisfactory, but I wanted to be sure that it was agreeable with you that werretain the check in view of the fact that we are appealing the Judgment. There is no reason for the check to be picked up, and of course, since the amount of the Judgment has been paid that will stop the running of any penalty and interest.

'Thanking you very much for your cooperation in this matter, I am

'Very truly yours,

SANFR, JACK, SALLINGER & NICHOLS

By ________

H. Louis Nichols'

The appellee has filed motion to dismiss the appeal, because after the appeal was perfected, the appellee tendered to appellant and appellant voluntarily accepted all sums due under the judgment of the lower court and hence having retained the fruits of the judgment, it is estopped to assert the trial court erred in rendering such judgment. We sustain the motion.

The rule is thus stated in Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004:

'A litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an appeal therefrom. That is the general rule which appears to be universally recognized. It was announced by this court in the early case of Matlow v. Cox, 25 Tex. 578. The rule is based on the principle of estoppel. It, however, is subject to the exception that '* * * where the reversal of a judgment cannot possibly affect an appellant's right to the benefit secured under a judgment, then an appeal may be taken, * * *.' 2 Am.Jur., Appeal and Error, Sec. 215. Numerous authorities, approaching the exception from a slightly different angle, define it, in effect, in this language: Where an appellant accepts only that which appellee concedes, or is bound to concede, to be due him under the judgment, he is not estopped to prosecute an appeal which involves only his right to a further recovery.' The court further said: 'The exception is narrow.'

The court in the case of Graham v. Caballero, 243 S.W.2d 286, (Tex.Civ.App.) 1951, writ refused, n. r. e., said:

'It is generally and universally held a litigant may not treat a judgment as both right and wrong, and if he accepts the benefits of the judgment, he will not be heard on an appeal therefrom. Carle v. Carle, (149 Tex. 469), 234 S.W.2d 1002. This is but another way of saying a litigant cannot accept the benefits of a judgment and then attack it as wrong.' See also Mueller v. Banks, 332 S.W.2d 783, 786, (Tex.Civ.App.) 1960, n. w. h. and Marshall v. Lockhead, 245 S.W.2d 307, 308, (Tex.Civ.App.) 1962, writ refused, n. r. e.

Appellant recognizes the general rule, but contends that it comes within the exception. In the case of Latimer, et ux. v. State of Texas, 328 S.W.2d 242, (Tex.Civ.App.) 1959, writ refused, n. r. e., a condemnation proceeding, the appellee after the appeal had been perfected paid into the registry of the court all sums due under the judgment of the lower court and from there withdrawn by appellants. The appellee filed a motion to dismiss the appeal because the appellants had voluntarily accepted all sums due under the judgment. The court in dismissing the appeal following the rule pronounced by the Supreme Court in Carle v. Carle, supra, said:

'The case at bar is within the rule but not within the exception. Appellants have no legal assurance that upon another trial they would be awarded as much as was awarded by the judgment from which the appeal was taken. Appellee has never conceded and is not bound to concede that it is intrinsically indebted to appellants for as much as was awarded by the judgment. It did not tender any sum of money to appellants until after the judgment was rendered, did not tender any sum of money in court, * * *.'

It can likewise be said of the case at bar that appellant has no legal assurance that upon another trial, it would be awarded as much as was awarded by the judgment from which the appeal was taken; that appellee has never conceded and is not bound to concede that he is intrinsically indebted to appellant for as much as was awarded by the judgment or that the judgment of the trial court was correct or that he had no grounds for appeal; that he did not tender any sum of money to appellant until after the judgment was rendered, nor tender any sum of money in court. At the time the judgment was rendered in the trial court, appellee duly excepted to the judgment of the court.

It might be pointed out that up to March 11, 1965, both sides were attacking the judgment of the trial court. Apparently Rawlins decided to put an end to the controversy and sent to the City Tax Assessor and Collector of the City of Masquite a cashier's check in full payment of the judgment. The check was accepted by appellant and subsequently cashed.

In the case of Dunham v. Randall & Chambers Co., 11 Tex.Civ.App. 265, 32 S.W. 720, 1895, writ refused, the court said:

'* * * 'It is a settled doctrine that where a party recovering a judgment or decree accepts the benefits thereof, voluntarily and knowing the facts, he is estopped to afterwards reverse the judgment or decree on error. The acceptance operates as and may be pleaded as a release of error.' * * *

'* * * The rule has often been enforced by our courts that a litigant, except in the matter of pleading his defenses, cannot occupy inconsistent positions. For him to accept the benefits of a judgment while prosecuting an appeal to have it set aside as erroneous is clearly an instance of such inconsistency, giving him, in case of reversal, an undue advantage over his antagonist, and...