Couch v. City of Richardson

• Decision Date: 14 March 1958
• Docket Number: No. 15376,15376
• Citation: 313 S.W.2d 949
• Parties: Bernice COUCH et vir, Appellants, v. CITY OF RICHARDSON et al., Appellees.
• Court: Texas Court of Appeals

Page 949

313 S.W.2d 949

Bernice COUCH et vir, Appellants, v. CITY OF RICHARDSON et al., Appellees.

No. 15376.

Court of Civil Appeals of Texas, Dallas.

March 14, 1958.

Rehearing Denied April 25, 1958.

Further Rehearing Denied May 30, 1958.

Billings & Donovan, Dallas, for appellants.

H. Louis Nichols, W. H. Shook, Sanders, Lefkowitz & Green, Dallas, for appellees.

DIXON, Chief Justice.

On April 12, 1955 appellants Bernice Couch and husband, Sterling Couch, sued the City of Richardson, Texas, and Gertrude M. Gillespie, a feme sole, seeking a judgment declaring their rights in the use and occupancy of what they allege to be a dedicated street called Dallas Street in the City of Richardson, Texas. They sought also an injunction to restrain the defendants from obstructing the said street and from denying appellants their right to use the street.

The City of Richardson answered appellants' suit with a disclaimer stating that the City has no interest in the property described or in the controversy alleged in appellants' petition, and stating further that the City is asserting no claim of right, title or interest in such property.

Appellee Gertrude Gillespie filed an answer and cross-action (trespass to try title) pleading the two, four, five, and ten year statutes of limitation, and asserting title both by warranty deed and by ten years' adverse possession of the portion of the alleged street.

The City of Richardson also filed a disclaimer to appellee Gillespie's cross-action, against stating that it has no interest in the tract of land described in the cross-action, and is asserting no interest therein.

Appellants filed a supplemental petition in which they pled not guilty to appellee's cross-action.

On April 5, 1956 a jury returned a verdict in which special issues were answered as follows:

1. The City Commission of the City of Richardson did not during the summer of 1937 pass an ordinance closing and abandoning or attempting to close and abandon that portion of Dallas Street in controversy.

2. As to whether that portion of Dallas Street was ever used by the public berore 1937 as a street, the jury answered 'Yes.'

3. Appellant Couch will not suffer damages which cannot be compensated for in money if the portion of the street in controversy is not opened to public use.

4. Appellee Gillespie and those through whom she holds conveyances held peaceable and adverse possession of the property, cultivating, using or enjoying same, paying taxes thereon, and claiming under a duly registered deed for a period of five years or more prior to April 12, 1955.

5. Appellee and those under whom she claims have been in peaceable and adverse possession of the property, cultivating, using or enjoying the same for a period of ten years or more before April 12, 1955.

On April 19, 1956 appellee Gillespie filed a motion for judgment on the jury findings and in the alternative for judgment non obstante veredicto. On April 30, 1956 appellants Couch filed motions for judgment non obstante veredicto and judgment on the jury verdict.

On January 14, 1957 appellee Gillespie filed a motion for interlocutory judgment against the City of Richardson, predicated on the pleadings of the parties already on file, including the disclaimer of the City; and further upon the grounds of Ordinance No. 26-A enacted by the City of Richardson on January 8, 1957, a certified copy of which ordinance was attached to the motion. This ordinance confirmed the previous abandonment by the City of a portion of Dallas Street conveyed to John M. Wright on November 22, 1937, and provided for the quitclaiming of same to John M. Wright and his successor in title, Gertrude M. Gillespie.

On April 11, 1957 the trial court signed a judgment of favor of appellee and the City of Richardson in appellants' suit, and against appellants and the City of Richardson in appellee's cross-action. The judgment contains this recitation:

'* * * the court having duly heard and considered a motion for judgment, and such additional considerations and findings as were authorized by law having been had and made * * *' (emphasis ours). Then the judgment provides that 'plaintiffs take nothing by their suit, and that the cross-plaintiff, Gertrude M. Gillespie on the verdict of the jury, and on the disclaimer filed by the City of Richardson, do have and recover of and from the defendants, Bernice Couch and husband, Sterling Couch, and the City of Richardson, this title and possession of the premises * * *.'

The City of Richardson did not file a motion for a new trial and has not appealed from the judgment against it.

Appellants Couch filed a motion for new trial, which was overruled June 6, 1957. Thereafter appellants filed an appeal bond which must be the subject of later discussion for the reason that appellee contends that the bond was filed too late to give this Court jurisdiction of the appeal.

A statement of facts was not tendered in this Court until more than five months after appellants' motion for new trial was overruled. This statement, on motion of appellee, was stricken from the official record because it was not filed in accordance with Rule 386 Texas Rules of Civil Procedure. In the absence of a statement of facts we must presume that the jury verdict and the judgment of the court are supported by the evidence. 3-B Tex.Jur. 386.

Prior to the submission of this appeal on its merits appellee presented a motion to dismiss the appeal on the grounds that we do not have jurisdiction because the appeal bond was not filed within the thirty days required by Rule 356 T.R.C.P. We overruled the motion. In connection with the appeal on the merits appellee renews her contention that we do not have jurisdiction of the appeal, and it is this renewed contention which we shall now consider.

The motion for new trial was overruled on June 6, 1957. There was an interval of time following the overruling of appellants' motion when appellants were not represented by counsel, their attorneys with the court's permission having withdrawn from the case. During this interval appellants apparently undertook to represent themselves and to perfect their appeal. On July 6, 1957, the thirtieth day after their motion was overruled, appellants presented a written appeal bond signed by themselves as principals, but not bearing the signatures of any person or persons as sureties. In the blank space reserved on the bond form for the names of sureties was written the word 'Cash'. At the same time this instrument was filed with the District Clerk, Mrs. Couch tendered her personal check in the amount of $1,000. The District Clerk accepted the bond signed by appellants together with the $1,000 personal check as a cash bond as provided by Rule 356 T.R.C.P., and issued to appellant Mrs. Couch his receipt No. 5079 for $1,000 cash. At a hearing before the trial court in an effort to correct the record, the trial court expressly found that at the time Mrs. Couch presented her personal check for $1,000 to the District Clerk she had on deposit at the bank a sum more than sufficient to cover payment of the check.

In our opinion the above actions of appellants constituted the filing of a cash appeal bond. Rule 356 T.R.C.P.; Thompson v. Thompson, 149 Tex. 632, 236 S.W.2d 779, at page 790. And whatever infirmities and irregularities there may have been in the bond, if there were any, they were not fatal to our acquiring jurisdiction. The bond was subject to correction, amendment and substitution under Rules 365 and 430 T.R.C.P. Hugo v. Seffel, 92 Tex. 414, 49 S.W. 369; Conlee v. Burton, Tex.Civ.App., 188 S.W.2d 713.

However, two days later appellants again appeared and filed with the District Clerk and appeal bond for $1,000 signed by themselves as principals and The Travelers Indemnity Company as surety. This appeal bond was accepted by the District Clerk in lieu of and in substitution for the cash bond described above. The personal check of Mrs. Couch had not been sent to the Bank. It was still in the possession of the District Clerk. When the new bond was filed and accepted by the District Clerk, he returned Mrs. Couch's check to her, and wrote the word 'Void' across his copy of the receipt for $1,000 which he had issued to her. No order of court was obtained authorizing this substitution of appeal bonds. While this procedure may have been somewhat irregular, again we hold that under Rules 365 and 430 T.R.C.P. the irregularity was not of such a nature as to make the bond void, or to deprive us of jurisdiction of the appeal. Appellee's renewed motion to dismiss the appeal is overruled.

Appellants have employed new counsel who have filed a brief in their behalf. In their first point on appeal appellants take the position that the judgment of the trial court is void on its face because it was singed and entered in violation of Rule 330(j), in that the court did not render a judgment based on the jury verdict until the second term after the return of the verdict.

The verdict of the jury in this case was returned April 5, 1956. Appellee's motion for judgment was filed April 30, 1956. The court rendered judgment April 11, 1957--nearly a year later. The 134th District Court, sitting in Dallas County, is authorized by statute to hold two terms of court each year, one term beginning on January first and ending on June 30th, and the second beginning on July first and ending on December 31st in each calendar year. The judgment in this case was not rendered until the second term after the return of the jury verdict. Is the judgment therefore void, as appellants contend? In support of their contention appellants rely on the holdings in British General Fire Insurance Co. v. Ripy, 130 Tex. 101, 106 S.W.2d 1047 (opinion adopted by Supreme Court), and Coats v. Garrett, 283 S.W.2d 289, by the Texarkana Court of Civil Appeals.

The cases cited do indeed hold that a court is not authorized to enter a judgment at the second...