Federal Supply Co. v. Bailey

• Decision Date: 26 November 1925
• Docket Number: (No. 289.)
• Citation: 279 S.W. 491
• Parties: FEDERAL SUPPLY CO. v. BAILEY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

279 S.W. 491

FEDERAL SUPPLY CO. v. BAILEY.^*

(No. 289.)

Court of Civil Appeals of Texas. Waco.

November 26, 1925.

Rehearing Denied January 21, 1926.

Appeal from District Court, McLennan County; Giles P. Lester, Judge.

Action by the Federal Supply Company against J. F. Bailey, wherein defendant filed cross-action, and wherein plaintiff, after voluntary dismissal, filed plea of privilege in defendant's cross-action. From an order overruling its plea of privilege, and from a default judgment entered in such cross-action, plaintiff appeals. Judgment reversed, and cause remanded.

Garland Tunstill and Clay Cooke, both of Fort Worth, for appellant.

W. V. Dunnam and Tom Shires, both of Waco, for appellee.

BARCUS, J.

In September, 1924, appellant filed suit in the district court of McLennan county against appellee. Citation was issued thereon and duly served for the October term of said court. On December 13, 1924, appellee in said cause filed his amended answer, and in said answer filed a cross-action against appellant. On the 17th of December citation was issued on said cross-action, and duly served on appellant December 19th, commanding appellant to appear at the February term, 1925, of said court to answer said cross-action. On December 17, 1924, whether before or after the citation was issued the record fails to disclose, the trial court entered the following order:

"On this, the 17th day of December, 1924, upon request of plaintiff herein, it is ordered, adjudged, and decreed by the court that the above-numbered and entitled cause (being No. 6438, Federal Supply Company v. Dr. J. F. Bailey) be and the same is hereby dismissed at plaintiff's cost, for which execution may issue."

On January 30, 1925, appellant filed its plea of privilege in statutory form, claiming its right to have the cause transferred to Tarrant county, the place of its domicile. On February 9th, the first day of the February term of court, appellee filed his controverting affidavit to appellant's plea of privilege. Said controverting affidavit was not presented to the trial court, and no notation was made by the trial court as to when the plea would be heard. On March 30, 1925, the trial court heard the plea of privilege and controverting affidavit, overruled same, and entered judgment by default in favor of appellee on his cross-action against appellant for the sum of $5,505.40. Appellant learned of said judgment being entered the day thereafter, and promptly filed its motion, asking to be heard on its plea of privilege, and requesting that same be granted, which the court overruled. Appellant on the same day, without waiving its plea of privilege, filed its motion for new trial, which was overruled, and appellant appealed from the order overruling the plea of privilege as well as the judgment of the court rendered against it in favor of appellee.

Appellant, by various assignments of error, contends that the order of the District Court entered on December 17th is a final judgment, disposing of the entire cause, including the defendant's cross-action. We recognize the provisions of article 1955 of Vernon's Sayles' Ann. Civil Statutes of 1914, which provides that the plaintiff at any time may take a nonsuit, but shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief. The trial court should not have dismissed appellee's cross-action over his protest or without his consent. Eddleman v. McGlathery, 74 Tex. 280, 11 S. W. 1100; Leverette v. Rice (Tex. Civ. App.) 151 S. W. 594. The trial court, however, in entering said order did, as a matter of fact, as we construe same, dismiss not only the plaintiff's cause of action but the defendant's cross-action. As entered on the minutes of the trial court, the judgment recites that the cause is dismissed, and nothing was left of same to be disposed of. There was no exception taken to said judgment, and no appeal therefrom. An order of dismissal is a final judgment, and remains the judgment of the court, and is binding on all parties until same is set aside by that court or reversed on appeal. 9 R. C. L. 191; Black on Judgments, vol. 1, p. 32; Brackenridge v. State, 27 Tex. App. 513, 11 S. W. 630, 4 L. R. A. 360; Fones v. Rice (Tex. Civ. App.) 35 S. W. 44; Kempner v. First Nat. Bank, 44 Tex. Civ. App. 500, 99 S. W. 112; Hutchison v. Robert Hamilton & Son (Tex. Civ. App.) 234 S. W. 417; Howeth v. Clark (Tex. App.) 16 S. W. 175; Moore, Mayfield Co. v. Missouri, K. & T. R. Co. 35 Tex. Civ. App. 607, 80 S. W. 881; Brown v. Pfouts, 53 Tex. 221.

Appellee contends the order entered on the minutes on December 17th did not have the effect of dismissing his cross-action, because it states it was made at plaintiff's request, and that plaintiff could not have the entire suit dismissed. We cannot agree with appellee's contention. The wording of the order is a complete and final judgment by the court. It does not leave any feature or part of the cause to be disposed of in...