Dickerson v. Mack Financial Corporation

• Decision Date: 18 December 1969
• Docket Number: No. 15532,15532
• Citation: 452 S.W.2d 552
• Parties: George R. DICKERSON, Appellant, v. MACK FINANCIAL CORPORATION, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 552

452 S.W.2d 552

George R. DICKERSON, Appellant, v. MACK FINANCIAL CORPORATION, Appellee.

No. 15532.

Court of Civil Appeals of Texas,

Houston (1st Dist.).

Dec. 18, 1969.

Rehearing Denied March 12, 1970.

Second Rehearing Overruled April 2, 1970.

John H. Holloway, Houston, for appellant.

Tom W. Foster, Houston, Weitinger, Bradshaw & Foster, Houston, of counsel, for appellee. On Motion for Rehearing

COLEMAN, Justice.

In connection with appellant's motion for rehearing he has submitted a supplemental transcript. Leave to file this transcript is granted. Facts gathered from the instruments found in this transcript prompt us to withdraw our original opinion, and to substitute this opinion.

This is a suit on a debt founded on a contract in writing. After a jury trial judgment was entered in favor of appellee against D. B. McAllister and George R. Dickerson, jointly and severally. Only Dickerson has appealed.

A question involving the jurisdiction of this Court arises in connection with appellant's first point of error. On January 6, 1966, the trial court entered in this cause a judgment decreeing that appellee recover judgment of D. B. McAllister in the sum of $4,054.74, together with interest at the rate of 10% From May 27, 1963 to the date of the judgment, together with the sum of $608.21 as attorney's fees, with interest on the total sum at the rate of 6% Per annum from date of judgment until paid, together with costs of court. This judgment recites that '* * * on this day came on to be heard the above entitled and numbered cause wherein Mack Financial Corporation * * * is plaintiff and D. B. McAllister * * * is defendant, and came the plaintiff * * * and announced ready for trial; and the defendant, though having been duly served with process, failed to appear or answer in his behalf, but wholly made default * * *.' It will be noted that the judgment does not recite the appearance of the defendant Dickerson, although he had filed an answer at that time.

On May 25, 1967, appellee filed his first amended original petition, based on the same transaction and the same written instrument, again naming both McAllister and Dickerson as defendants . The transcript contains no pleadings filed by McAllister, but does contain an original answer and an amended answer filed by Dickerson. In his amended answer Dickerson alleged that the judgment against McAllister entered on January 6, 1966 was a final judgment entered without severance of the joint cause of action alleged in the petition, and that 'whatever claims plaintiff has against this defendant were merged into such judgment which in effect constituted a denial and disallowance of any claims against Dickerson.'

In his answer he also stated:

'Therefore, said judgment is plead by way of both estoppel any by way of plea to the jurisdiction of the court to enter any further judgment since it may not enter two final judgments in one cause, that said judgment is res adjudicata of the issues herein, and constitutes a judgment upon the facts that the plaintiff take nothing against the defendant Dickerson.'

On March 24, 1969, another judgment was entered in the case. It begins:

'Be it remembered that on the 12th day of November, 1968, came on for trial the above entitled and numbered cause, wherein Mack Financial Corporation is the plaintiff and D. B. McAllister and George R. Dickerson are the defendants and came all parties to such cause, in person or through their respective attorneys of record, and all parties having announced ready, and a jury of twelve (12) good and lawful men and women having been duly selected, empaneled and sworn, and all parties having read their pleading, adduced evidence upon the trial, and all parties having thereafter rested their cases. * * *'

In North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex. 1966), the court stated: 'Analysis of the decisions * * * discussed is sufficient to lead us to the statement of a rule for determining, in most instances, where judgments in which parties and issues made by the pleadings are bot disposed of in express language are, nevertheless, final for appeal purposes. Where a judgment, not intrinsically interlocutory in character, is rendered and entered in a case set for a conventional trial on the merits * * * it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties. * * *'

The record does not reflect that the case was set a conventional trial on the merits at the time of the hearing resulting in the default judgment. It recites that D. B. McAllister is 'defendant' and makes no mention of Dickerson except in the style of the case. The court will not indulge a presumption that the case was set for a conventional trial on the merits. Here the default judgment granted against the defendant not answering contains no reference to an appearance by the defendant who had filed an answer and does not specifically dispose of the case as to this defendant. A default judgment may be taken at any time after the citation with the officer's return has been on file with the clerk for such length of time as to comply with Rule 107, Texas Rules of Civil Procedure, without a setting. Rule 239, Ibid. Rule 240, ibid, provides that an Interlocutory default judgment may be entered against a defendant who has made default where the other defendant either has not been duly served or has answered, and the cause may proceed or be postponed as to the other. The default judgment was an interlocutory judgment only. Sindorf v. Cen-Tex Supply Co., 172 S.W .2d 775 (Tex.Civ.App.--El Paso 1943); Buttrill v. Occidental Life Ins . Co., 45 S.W.2d 636 (Tex.Civ.App.--Dallas 1932).

The judgment entered on March 24, 1969, clearly meets the test for finality prescribed by the Supreme Court. Rule 301, T.R.C.P., provides that only one final judgment can be entered in a suit. After a judgment meeting the test of a final judgment has been entered in a cause, the entry of a second final judgment in the same case is not a vacation of the first, and if there is nothing to show that the first is vacated the second is a nullity. Mullins v. Thomas, 136 Tex. 215, 150 S.W.2d 83 (1941).

In Kone v. Security Finance Co., 158 Tex. 445, 313 S.W.2d 281 (1958), a partnership and its individual members were sued and one partner failed to answer. An interlocutory default judgment was entered against him. A trial on the merits followed. Following return of the jury's verdict the court, on motion, set aside the interlocutory judgment and entered a joint and several judgment against the partnership and all of the individual members. The Supreme Court held that the trial court had continuing control of the interlocutory order with power to set it aside even at a subsequent term of court.

In Lubell v. Sutton, 164 S.W.2d 41 (Tex.Civ.App.--Texarkana 1942, error ref.), the court stated: '* * * We think the interlocutory decree entered November 15, 1926, is shown to have been made final by the decree of the court entered July 18, 1927, approving the final report of receiver, when read in the light of the record leading up to the last-mentioned decree; and that said last-mentioned decree may correctly be characterized as the final judgment, within the terms of R.S.1925, Article 2211, providing that '* * *."

The trial court had the power to set aside the default judgment on his own motion prior to the entry of the final judgment. His intention to do this can be seen in that the terms of the judgment entered on March 24, 1969 materially differed from those contained in the earlier judgment. The judgments are inconsistent. The entry of a final judgment inconsistent in its terms with a prior interlocutory judgment operates to set aside the interlocutory judgment as a necessary result of the application of the rule that only one final judgment may be entered in a case. Keeling v. Zoller, 388 S.W.2d 274 (Tex.Civ.App.--San Antonio 1965); Texas Crushed Stone Company v. Weeks, 390 S.W.2d 846 (Tex.Civ.App.--Austin 1965, ref., n.r.e.).

The propriety of the action of the trial court in denying a motion for summary judgment cannot be considered on an appeal from a judgment cannot be considered after a trial on the merits. Castilleja v. Camero, 402 S.W.2d 265 (Tex.Civ.App.--Corpus Christi 1966, aff'd 414 S.W.2d 424, Tex. 1967); Archer v. Skelly Oil Company, 314 S.W.2d 655 (Tex.Civ.App.--Amarillo 1958, error ref., n.r .e.); Stewart v. Lomax, 395 S.W.2d 82 (Tex.Civ.App.--Corpus Christi 1965, error ref., n.r.e.).

In the petition on which the case was tried it was alleged that defendants, D. B. McAllister and George R. Dickerson, purchased a Mack Truck from Mack Trucks, Inc. and contracted to pay therefor a total time balance of $18,645.06 in forty-two equal successive monthly installments of $443.93 each. In connection with the sale, it was alleged, they executed a chattel mortgage on the truck, a copy of which was attached to the petition. The petition alleged that the chattel mortgage had been assigned by Mack Trucks, Inc. to Mack Financial Corporation and that Mack Financial Corporation is the legal owner and holder thereof.

It was alleged that at a time when $3,038.00 was past due, and the total sum of $10,210.39 unpaid, the truck was voluntarily relinquished to the plaintiff, who thereafter sole the truck to the highest bidder for $6,000.00; that after applying the proceeds of the sale to the indebtedness and allowing all just and lawful credits and offsets, there remained due a deficiency of $4,054.17. The defendants refused to pay the deficiency.

The alleged mortgage provided for attorney's fees of 15 per cent of the amount due under the mortgage. It also provided that the mortgagor would pay the deficiency with 10 per cent interest at Houston, Texas. The petition was not verified.

The answer filed by George R. Dickerson...