Collins v. Miller
| Decision Date | 18 June 1969 |
| Docket Number | No. 11668,11668 |
| Citation | 443 S.W.2d 298 |
| Parties | William M. COLLINS, Appellant, v. Allen MILLER et ux., Appellees. . Austin |
| Court | Texas Court of Appeals |
Kuykendall & Kuykendall, Kirk Kuykendall, Austin (on appeal only), for appellant.
Hooper & Robinson, Malcolm Robinson, Austin, for appellees.
O'QUINN, Justice.
Appellees brought this lawsuit against appellant to recover damages for fraudulent misrepresentation by appellant in the sale of a lot to appellees upon which they later built their home.
The appellees, Allen W. Miller and wife, sued Appellant William M. Collins as seller of the lot for damages and sued James R. Sneed to enjoin him from operating a welding shop on the lot next door to appellees. After trial before the court, judgment was entered awarding damages of $2,000 against Collins and denying injunctive relief against Sneed.
Collins has perfected his appeal, bringing twelve points of error. We overrule all points of error and affirm the judgment of the trial court.
The Millers bought a lot in 1961 from Collins by deed dated January 2, 1962. By early 1964 the Millers had constructed a home on the lot at a cost of $22,541.27. In June 1966 Collins sold an adjoining lot to Sneed, who in the summer of 1966 built and began operating a welding shop on the property. The Millers brought this suit in June 1967.
The Millers alleged and the trial court found that before 1961 the Millers and Collins were friends; that in 1961 Collins represented that the lot he later sold to the Millers was restricted so that nothing could be built on this lot and other lots on a plat except residences costing in excess of $20,000; that Collins told the Millers he planned to build his own home on a lot next door to the Miller lot; and that the Millers relied on representations, but for which they would not have purchased the lot. The record shows that the Millers paid $2,000 for the lot. At the time of the sale there were in fact no restrictions on the use of the Miller lot or the lots adjacent to the Miller lot.
The Millers sought to recover damages based on the difference between present value of 'Lot 2 * * * had it been as represented' and the 'actual value of the property for residential purposes' at time of suit, the difference being $22,541.27, and sought exemplary damages in the sum of $2,000. The Millers also pleaded generally they had been damaged in the sum of $22,541.27. The trial court awarded actual damages for $1,250 and exemplary damages for $750.
Appellant makes four principal contentions under twelve points of error.
Under points one and two appellant contends he was improperly denied a jury trial.
Demand for a jury trial was made September 16, 1968, and on the following day an order was entered directing that the cause be placed on the jury docket. At a call of the docket on September 19, a different judge, sitting in the same court, denied the demand for a jury, '* * * the Court having determined that such request was not timely filed * * *' The case went to trial, with a third judge sitting, on September 25 in accordance with a setting made, in conformity with rules of the Travis County district courts, at least thirty days prior to trial.
Appellant argues that the order for a jury, '* * * being signed by James R. Meyers, Judge * * *' was a valid order until set aside or vacated, and that the later order denying request for a jury '* * * signed by Tom Reavley, Judge Presiding * * *' which did '* * * not vacate, set aside or modify the preceding order for jury,' constituted error as an abuse of discretion.
The case went to trial on September 25 before Judge Herman Jones, sitting in the same court, and final judgment was entered by Judge Jones the following day.
Appellant urges that when Judge Reavley at the call of the docket denied the request for a jury '* * * and Judge Jones entered the judgment reciting that a jury trial had been denied appellant, they violated an established rule,' stated in 21 C.J.S. Courts § 501, p. 768.
The rule there stated is that '* * * it is generally considered that, in the same case, one judge may not review and overrule the prior decisions, or vacate or modify the prior orders, of another judge of the same court or possessing equal and co-ordinate power and jurisdiction, where the other judge is available at the time of the application to set aside or change his order or decision.'
In this State provision is made by the Constitution for district judges to hold court for each other. Constitution of Texas, Art. V, sec. 11, Vernon's Ann.St. Specific provision by statute is made for judges of the district courts of Travis County to hold court and act for the other judges. Art. 199 (53, 98, 126, 147, 167--Travis), Vernon's Ann.Civ.Sts. Any judge of a district court of Travis County may hear and determine any part of any case or proceeding pending in any of the district courts of the county, or may hear and determine any question in any case, and any judge may complete the hearing and render judgment in the case.
This cause was pending in the 126th District Court, presided over by Judge Meyers, and all proceedings were had without transfer of the cause to another court. The actions taken by the three judges in this case were not actions of separate judges in different courts but the several acts were as if performed by one judge presiding over the 126th District Court in the same case.
The first order placing the cause on the jury docket was interlocutory and subject to change on the court's own motion or motion of a party. 39 Tex.Jur.2d, Motions and Orders, sec. 16, and cases cited. When it was determined later that the request for a jury had not been timely filed, it was immaterial which judge entered the order denying a jury, provided at the time the order was made the judge making it was presiding in the court in which the case was pending.
We hold that the trial court did not abuse its discretion in refusing a jury trial. Appellant did not comply with Rule 216, Vernon's Ann.Rules Civ.Proc. The case had been pending more than a year, during which time it had been set for trial several times. Appellant did not file request for a jury until nine days before the cause was set to go to trial in September 1968. Appellees had no notice that a jury had been demanded until call of the docket on Thursday preceding the week of trial. The right...
To continue reading
Request your trial
-
Chemetron Corp. v. Business Funds, Inc.
...See Pace v. McEwen, 574 S.W.2d 792, 801 (Tex.Civ.App.-El Paso 1978, writ ref'd n. r. e.); Collins v. Miller, 443 S.W.2d 298, 302 (Tex.Civ.App.-Austin 1969, writ ref'd n. r. e.). Therefore, art. 4004 requires willfulness or knowledge on the part of the defendants before exemplary damages are......
-
Trenholm v. Ratcliff
...may be recovered for losses on improvements to property purchased as a result of misrepresentation. Collins v. Miller, 443 S.W.2d 298, 301 (Tex.Civ.App.--Austin 1969, writ ref'd n.r.e.); El Paso Development Co. v. Ravel, 339 S.W.2d 360, 364 (Tex.Civ.App.--El Paso 1960, writ ref'd n.r.e.). R......
-
Meyers v. Moody
...insolvency.22 Texas law permits punitive damages to be recovered under the facts of this case. See Collins v. Miller, 443 S.W.2d 298 (Tex.Civ.App.--Austin 1969, writ ref'd n.r.e.); Williams B. Roberts, Inc. v. McDrilling Co., 579 S.W.2d 335, 340 (Tex.Civ.App.--Corpus Christi 1979, no ...
-
McGehee v. Epley
...(Tex.Civ.App.--Beaumont 1979, no writ); Balderas v. State, 497 S.W.2d 298, 299 (Tex.Crim.App.1973); Collins v. Miller, 443 S.W.2d 298, 300 (Tex.Civ.App.--Austin 1969, writ ref'd n.r.e.). The authorities cited and any enlightened view of judicial administration require that appellant's first......