Eckel v. First Nat. Bank of Ft. Worth

• Decision Date: 16 October 1942
• Docket Number: No. 14431.,14431.
• Citation: 165 S.W.2d 776
• Parties: ECKEL v. FIRST NAT. BANK OF FORT WORTH.
• Court: Texas Court of Appeals

165 S.W.2d 776

ECKEL v. FIRST NAT. BANK OF FORT WORTH.

No. 14431.

Court of Civil Appeals of Texas. Fort Worth.

October 16, 1942.

Rehearing Denied November 13, 1942.

Appeal from District Court, Tarrant County; Walter L. Morris, Judge.

Garnishment proceedings by V. A. Eckel against First National Bank of Fort Worth, garnishee, after judgment against R. E. Weir and another. R. E. Weir intervened. From a judgment for intervenor, V. A. Eckel appeals.

Reversed and remanded with instructions.

Homer B. Green and Dawson H. Davis, both of Fort Worth, for appellant.

Rogers & Spurlock, of Fort Worth, for appellee.

McDONALD, Chief Justice.

This proceeding involves a garnishment after judgment.

In 1934, V. A. Eckel, the appellant here, was injured in a fire and explosion. He brought suit in the 67th District Court of Tarrant County against R. E. Weir and the Lone Star Gas Company. Weir did not answer or defend the suit. Upon trial before a jury, judgment for $15,000 was rendered in favor of Eckel against Weir and the Gas Company, jointly and severally. The Gas Company appealed, but Weir did not. This Court of Civil Appeals reversed the judgment against the Gas Company, remanding the case for a new trial but left undisturbed the judgment against Weir. Lone Star Gas Company v. Eckel, Tex.Civ.App., 110 S.W.2d 936. Mandate was issued by this court in June, 1938. On November 1, 1938, Eckel entered into a compromise settlement with the Gas Company, executing a release in writing, under the terms of which he was paid $2,753.52, and the sum of $446.48 was paid to the United States Employees Compensation Commission, making a total of $3,200 paid by the Gas Company.

On December 19, 1938, there was entered in the cause then pending an order reading as follows:

"V. A. (Dick) Eckel vs. Lone Star Gas Company, Et Al. Order of Dismissal. December 19, 1938. Upon application therefor by the plaintiff in the above styled and numbered cause to have the same dismissed at the cost of the defendant; and the court having considered said application is of the opinion that the same should be, and it is hereby, dismissed at the cost of the defendant."

On August 12, 1941, Eckel filed in the 67th District Court an application for garnishment, alleging the rendition of the judgment against the Gas Company and Weir, the appeal by the Gas Company alone and the action of the Court of Civil Appeals, the dismissal as to the Gas Company, that the judgment against Weir is valid, subsisting and wholly unsatisfied, and that the First National Bank is indebted to Weir, and praying for issuance of a writ of garnishment.

The answer of the garnishee revealed that Weir had approximately $287 on deposit with said Bank.

Weir intervened, defending upon the ground that the claim against him had been discharged and released as a result of the compromise settlement between Eckel and the Gas Company.

Upon trial without a jury, the trial court rendered judgment denying Eckel any recovery. The judgment contains numerous findings, among which are: (1) That the dismissal order above mentioned was entered upon application of the Gas Company. (2) That it appears from the oral testimony that Eckel did not intend to include Weir in the release given to the Gas Company. (3) That it is the opinion of the court that regardless of the verbal testimony the release as worded constituted a release of the entire cause of action and all claims of any kind or character whatever, judgment or otherwise, and therefore constituted a release as to Weir.

The statement of facts contains a stipulation to the effect that Eckel and his attorneys, prior to the execution of the release, objected to the inclusion of the name of Weir in the release, and specifically stated to the attorney for the Gas Company that Eckel was not waiving any of his rights against Weir, and that the judgment against Weir was not being released, and that it was thereupon agreed that Weir's name should be stricken from the release. One of Eckel's attorneys, and the attorney for the Gas Company, also testified to the same effect. The latter also testified that Weir was not consulted about the settlement.

The release purports to release only the Gas Company, but it does not contain any express reservation of rights against Weir. It recites that it is considered doubtful by the parties to the release whether any liability exists on the part of the Gas Company, and that it is not to be considered as an admission of liability.

It is first necessary to consider the status of the judgment against Weir, which was left undisturbed by the ruling of the Court of Civil Appeals.

Art. 2211, R.C.S., Vernon's Ann.Civ.St. art. 2211, which is now Texas Rules of Civil Procedure, Rule No. 301, provides in part: "Only one final judgment shall be rendered in any Cause except where it is otherwise specially provided by law."

But it has long been the law that in a proper case the appellate court may reverse a judgment as to certain of the parties, and may affirm it or leave it undisturbed as to other of the parties. 3 Tex. Jur. 1148-1161.

Appellee, without citing any case so holding, argues that in such situation the judgment which is left undisturbed becomes a mere interlocutory judgment, which will not support the issuance of execution or other process, and which is subject to such action, including dismissal, as the court may take with reference to the entire case. The decisions cited by appellee are either those which hold that a failure to dispose of all parties in a judgment prevents it from becoming a final judgment, or those which hold that a trial court may not grant a new trial as to some of the parties, and at the same time render a final judgment as to others.

It is our view that in those cases where the appellate court is authorized to reverse the judgment as to some of the parties, and to leave it undisturbed as to the other parties, the judgment becomes final as to the latter. Upon failure of Weir to appeal, the judgment became final as to him, and the action of the Court of Civil Appeals in no way altered the finality of the judgment against Weir. The legal consequences of the ruling of the Court of Civil Appeals were somewhat the same as if there had been a formal severance of the suit against Weir from that against the Gas Company. Execution could have issued against Weir. It was not necessary that he be named in any...