City of San Antonio v. Bodeman

• Decision Date: 11 February 1914
• Parties: CITY OF SAN ANTONIO v. BODEMAN.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

163 S.W. 1043

CITY OF SAN ANTONIO v. BODEMAN.^†

Court of Civil Appeals of Texas. San Antonio.

February 11, 1914.

Rehearing Denied March 4, 1914.

Appeal from County Court for Civil Cases, Bexar County; John H. Clark, Judge.

Action by Albert Bodeman against the City of San Antonio. Judgment for plaintiff, and defendant appeals. Affirmed.

Geo. R. Gillette and Robt. G. Harris, both of San Antonio, for appellant. Henry E. Vernor and Joseph Ryan, both of San Antonio, for appellee.

MOURSUND, J.

Albert Bodeman sued the city of San Antonio for nine months' salary, at $85 per month, as detective in the police department of said city. He alleged that on July 20, 1911, a commission duly signed by the mayor and attested by the city clerk of said city, under the corporate seal of said city, was issued to him appointing him to the office and position of detective in the police department of said city, he having been previously appointed by the mayor and confirmed by the city council to said office and position as provided by the charter of said city, said appointment, under the Constitution and laws of the state and charter and ordinances of the city, being for the term of two years and until his successor should be appointed and qualified; that by ordinances of said city and under the budgets thereof the salary of said position was fixed at $85 per month, payable each month, and the city council of said city regularly made provision therefor for the full fiscal years and each month during the two-year period ending May 31, 1913, and paid plaintiff such salary for each month until August 31, 1912, when, without authority of law and without action by the city council as by the charter of said city required, plaintiff was unlawfully by the mayor and city marshal discharged from the service of said city; that he was entitled to a warrant for his said salary at the end of each and every month as by the charter and ordinances of said city provided, but since said last-named date defendant has not paid plaintiff such salary and has refused to issue him any warrant therefor, though provision had been made throughout said period of time for the amount and payment of such salary for such position. Plaintiff alleged further that he had a lien upon the current revenues of the city for the fiscal year ending May 31, 1913, and prayed that said lien be established and that defendant and its officers, agents, and employés be enjoined from disbursing the funds properly applicable to his claim, and also that a mandamus issue requiring them to issue him a proper warrant for the sum due him, including interest, and requiring them to pay same out of the revenues for said fiscal year and of any other year properly applicable thereto. Defendant answered by general demurrer and general denial. Upon a trial before the court judgment was rendered awarding plaintiff $797.92, and granting the relief by mandamus and injunction as prayed for by him. Defendant appealed.

By the first and second assignments of error it is contended that the general demurrer should have been sustained. Appellee objects to the consideration of these assignments because the judgment fails to show any action on the demurrer. Our courts have frequently stated that, where the record does not show that demurrers and exceptions were called to the attention of the trial court and passed upon, they will be considered as waived. Moore v. Woodson, 44 Tex. Civ. App. 503, 99 S. W. 116; Insurance Co. v. Boren, 83 Tex. 97, 18 S. W. 484; Floyd v. Rice, 28 Tex. 341; Railway v. Rollins, 89 S. W. 1099; Bonner & Eddy v. Glenn, 79 Tex. 533, 15 S. W. 572; Cotton v. Cooper, 160 S. W. 602. Authorities are cited in Encyclopedic Digest of Texas Reports, vol. 6, p. 310, as supporting the rule above stated, but an examination of them shows that many only involved rulings upon special exceptions. But in the case of Beaumont Irrigating Co. v. Gregory, 136 S. W. 548, the court states that such rule of waiver applies to special exceptions, but not to a general demurrer. This statement is based upon the decisions which hold that, when a petition is fatally defective and fails to state a cause of action, the fact that defendant did not rely upon his demurrer will not prevent him from availing himself of such defect on appeal. Grant v. Whittlesey, 42 Tex. 320; Bradshaw v. Davis, 12 Tex. 345; Stansbury v. Nichols, 30 Tex. 150; Black v. Calloway, 30 Tex. 237; Alamo Ins. Co. v. Davis, 45 S. W. 604; Schuster v. Frendenthal, 74 Tex. 54, 11 S. W. 1051. A petition may fail to state a cause of action because of the omission of necessary averments. T. & P. Ry. Co. v. McCoy, 3 Tex. Civ. App. 276, 22 S. W. 926. Again it may show on its face that recovery is sought upon an illegal contract. Redland Fruit Co. v. Sargent, 51 Tex. Civ. App. 622, 113 S. W. 330; Norris v. Logan, 97 S. W. 820. Or it may allege facts showing a defense to the cause of action sought to be recovered upon. Moore v. Snell (Sup.) 88 S. W. 273. The cases holding that a general demurrer may be waived, and those holding that it may be interposed upon appeal, though not presented in the trial court, present an apparent conflict. Our investigation leads us to believe that in many cases cited in support of the doctrine that a general demurrer may be waived the court was considering special exceptions, while in others the objections urged as sufficient to sustain a general demurrer were of such a character that they should have been presented in the form of special exceptions.

It will be noticed that the case of Chambers v. Miller, 9 Tex. 236, apparently holds that a demurrer may be waived, but in fact the demurrer was to the answer, and the sufficiency of the pleadings to support the judgment was not before the court. In the next case, in the same volume, De Witt v. Miller, 9 Tex. 239, the court recognizes the doctrine that defects in a petition may be of such character that they may be taken advantage of in the appellate court, though no demurrer was filed below. The case of Rowlet v. Fulton, 5 Tex. 458, has also been cited in support of the waiver of a general demurrer, but in fact the court said: "The record shows no action on the demurrer; and, unless the objections would be fatal on error, they cannot be noticed on appeal." The court declined to examine into the alleged defects because the case was reversed upon another ground. There can be no doubt that our courts have always held that a fatally defective petition may be attacked upon appeal, though such error was not urged below or was apparently waived. But the rule sometimes imposes a hardship, and, in order to avoid such hardships as much as possible, it is held that the answer may be considered with the petition to see whether the pleadings support the judgment. In fact, our courts have gone a step further, and held that, even when a demurrer is urged against a petition in the lower court, such petition may be aided by the averments of the answer. For authorities, see Peoples v. Brockman, 153 S. W. 910. This holding is not logical in view of the statute which requires defensive pleadings to be filed at the same time and in due order, but it does no injustice and appears to be settled law in this state. It is also held that the verdict may cure defects in the petition. De Witt v. Miller, 9 Tex. 245; McClellan v. State, 22 Tex. 409; Williams v. Warnell, 28 Tex. 610; Schuster v. Frendenthal, 74 Tex. 54, 11 S. W. 1051; Lewis v. Batten, 35 Tex. Civ. App. 370, 80 S. W. 389; Indiana & Ohio L. S. Ins. Co. v. Smith, 157 S. W. 755; Rich v. Telegraph Co., 101 Tex. 470, 108 S. W. 1152; Ellis v. Howard Smith Co., 35 Tex. Civ. App. 566, 80 S. W. 633.

In the cases of Stansbury v. Nichols, 30 Tex. 150, and T. & P. Ry. Co. v. McCoy, 3 Tex. Civ. App. 276, 22 S. W. 926, it was held that the defects were of such character that the were not cured by the verdict. In the cases of De Witt v. Miller and Schuster v. Frendenthal, supra, the court undertook to briefly lay down a rule for determining when a verdict cured a defect in pleading. See, also, Townes, Texas Pleading (2d Ed.) p. 440, for a statement of the rule, and, for a full discussion, see Chitty on Pleading (16th Ed.) pp. 705-716. On page 711, after discussing many cases, the author says: "It will be observed that in all the cases we have given upon this subject, although the particular matter was not stated in express terms, the declaration or other pleading in each case contained terms sufficiently general to comprehend it in fair and reasonable intendment." The author shows that in some cases the rule has been extended to cure by verdicts entire omissions in pleadings, upon the presumption that proof of the omitted fact was made in order to procure the verdict; but he considers such cases in conflict with the weight of authority. It is plainly deducible from the cases decided by our Supreme Court that said court has always been of the opinion that when the sufficiency of the petition is questioned for the first time after verdict more liberal rules should be applied in passing on the same than are laid down for testing the pleading when the demurrer is interposed and urged at the proper time. But the cases cited by us, in so far as they undertake to announce a rule, go back to Chitty on Pleading for the same, and we find no definite statement by our Supreme Court of the adoption of a more liberal rule than that sustained by the weight of...