Farmer v. Denton, 6086
| Decision Date | 19 June 1950 |
| Docket Number | No. 6086,6086 |
| Citation | 231 S.W.2d 908 |
| Parties | FARMER et al. v. DENTON, Judge. |
| Court | Texas Court of Appeals |
McWhorter, Howard, Cobb & Gibson, Lubbock, for relators.
Hay & Hudspeth, Lubbock, for respondents.
This is an original proceeding in which relators, Ray Farmer and Clifton Cook filed a petition for mandamus seeking to compel respondent, Honorable James G. Denton, Judge of the County Court at Law of Lubbock County, to enter a judgment in favor of relators on a jury verdict duly returned into the said court after a trial was had in cause number 5689, styled James G. Morris and State Farm Insurance Companies v. Ray Farmer, d/b/a City Cab Company and Clifton Cook. Relators alleged in a verified petition filed in this court on June 3, 1950, that James G. Morris and State Farm Insurance Companies filed suit in the said court in the said cause against relators as defendants, tendering to relators the sum of $75 and seeking to set aside a compromise settlement and agreement previously made between them and relators because of alleged fraud and also seeking damages from relators by reason of their alleged negligence that resulted in an automobile collision in the City of Lubbock, Lubbock County; that relators joined issues with the said plaintiffs and further alleged that plaintiffs' damages, if any, were caused as a result of the negligence of plaintiff James G. Morris; that on April 27, 1950, the cause proceeded to trial in the said court before the said judge and a jury which resulted in a jury verdict exonerating relators as defendants from any negligence that proximately caused the alleged damages; that the said verdict likewise exonerated plaintiffs of any negligence that proximately caused the damages but that the said jury failed to answer an issue submitted to it on the question of whether or not the automobile collision was the result of an unavoidable accident. Relators further pleaded that the jury found against them on the issues of fraud but such findings were a basis only for setting aside the former agreed settlement and authorizing a hearing on the issues of liability, if any, for the alleged damages. Relators further pleaded that as a result of the trial and verdict of the jury exonerating them from any negligence that proximately caused the damages and therefore exonerating them from liability they were entitled to judgment in their favor and they moved the court for such judgment. They further pleaded that plaintiffs likewise moved for a mistrial on the grounds that the verdict of the jury was conflicting and inadequate for judgment; that after some deliberation respondent, the said trial judge, overruled relators' motion for judgment and sustained plaintiffs' motion for a mistrial and entered a nunc pro tunc judgment after the term of court had expired declaring a mistrial. Relators attached exhibits reflecting the foregoing proceedings to their verified petition filed in this court making them a part thereof, and they are now seeking to have this court, after proper notice and due hearing had, enter its order directing respondent to enter a judgment for them on the said verdict of the jury.
Upon considering the said verified pleading of relators with the exhibits attached thereto and made a part thereof, this court set the matter down for a hearing on June 12, 1950, and ordered respondent served. On June 9, 1950, respondent answered through counsel who had previously represented plaintiffs in the original suit.
In his verified answer respondent accepts as true a large part of relators' pleadings as to the procedure had in the cause presented between the parties but pleads that the case between the said parties was tried on April 27th and 28th, 1950, at which time the jury verdict was rendered and the term of court at which the case was tried expired on April 30, 1950, without a motion for judgment having been filed or a judgment of any kind having been rendered. Respondent further pleads that relators filed their motion for judgment on May 11, 1950, after the term of court at which the case was tried had expired, that soon thereafter plaintiffs filed a motion for a mistrial and that on May 25, 1950, respondent, though ill-advised in the matter, entered a nunc pro tunc order overruling relators' motion for judgment and declaring a mistrial in the case. For the reasons pleaded respondent contends that inasmuch as the trial court would not have authority under the facts and circumstances to enter a judgment nunc pro tunc or otherwise on the jury verdict after the term of court had expired, this court would be without jurisdiction to direct that such be done.
On June 10, 1950, relators filed a verified pleading in reply to respondent's answer filed on the previous day. The issues are clearly drawn and well presented by the parties, who agreed to submit them to this court without oral argument or personal appearances.
An examination of the jury verdict reveals no conflict in the answers given by the jury but no answer was given to the issue inquiring if the collision of the automobiles that resulted in the damages was an unavoidable accident. The jury had previously found by their answers that neither the relators nor the plaintiffs were guilty of negligence that resulted in the damages, thus the issue of unavoidable accident became immaterial. Brown v. Dallas Gas Co., Tex.Civ.App., 42 S.W.2d 869; Blanton v. E. & L. Transport Co., 146 Tex. 377, 207 S.W.2d 368. Before the party plaintiffs in the original action could recover damages from relators they must allege and prove a cause of action against relators; that is, the...
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Smith v. Morgan
...have answered this issue, the plaintiff could not recover. Under such circumstances a mistrial should not be ordered. Farmer v. Denton, Tex.Civ.App., 231 S.W.2d 908; Littlerock Furniture Mfg. Co. v. Dunn, Tex.Sup., 222 S.W.2d 985; Brown v. Dallas Gas Co., Tex.Civ.App., 42 S.W.2d 869; Blanto......
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Texas Bank & Trust Co. of Dallas v. Custom Leasing, Inc.
...Rules 300 and 301, T.R.C.P.; Johnson Aircrafts v. Wilborn, 190 S.W.2d 426 (Tex.Civ.App., Fort Worth, 1945, writ ref'd w.o.m.); Farmer v. Denton, 231 S.W.2d 908 (Tex.Civ.App., Amarillo, 1950, no writ); Carter v. Old Faithful County Mutual Fire Ins. Co., 243 S.W.2d 215 (Tex.Civ.App., Fort Wor......
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Maynard v. Dallas Ry. & Terminal Co.
...v. Morgan, Tex.Civ.App., 235 S.W.2d 938, 940 (Writ Dis.); Price v. Leon, Tex.Civ.App., 202 S.W.2d 309, 311 (RNRE); Farmer v. Denton, Tex.Civ.App., 231 S.W.2d 908, 910; Kindy v. Willingham, Tex.Civ.App., 205 S.W.2d 435, 437, reversed on other grounds, 146 Tex. 548, 209 S.W.2d 585; Colls v. P......
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Nelson v. Dallas Ry. & Terminal Co.
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