First Nat. Bank in Graham v. Corbin

• Decision Date: 20 June 1941
• Docket Number: No. 14254.,14254.
• Citation: 153 S.W.2d 979
• Parties: FIRST NAT. BANK IN GRAHAM et al. v. CORBIN et al.
• Court: Texas Court of Appeals

153 S.W.2d 979

FIRST NAT. BANK IN GRAHAM et al. v. CORBIN et al.

No. 14254.

Court of Civil Appeals of Texas. Fort Worth.

June 20, 1941.

Rehearing Denied September 12, 1941.

Appeal from District Court, Young County; Allan D. Montgomery, Judge.

Consolidated suits between the First National Bank in Graham and others and H. L. Corbin and others involving numerous claims of creditors of N. B. Crenshaw, growing out of certain oil operations. From the judgment, the First National Bank in Graham and another appeal, and H. L. Corbin and others cross-assign error.

Judgment reversed in part, rendered in part, and affirmed in part.

See, also, Tex.Civ.App., 148 S.W.2d 439.

Penix & Penix and Marshall & King, all of Graham, for appellant First Nat. Bank in Graham.

Carrigan, Hoffman & Carrigan, of Wichita Falls, for appellant Continental Supply Co.

McFarlane & McFarlane, of Graham, for appellees.

McDONALD, Chief Justice.

This suit involved numerous claims of creditors of one N. B. Crenshaw, growing out of certain oil operations of the latter in Young County, Texas. Two suits were consolidated, and the judgment disposed of many parties and many issues. Only two parties appealed, upon the issues hereinafter noted.

We are faced at the outset, in our consideration of the appeal, with a confused situation relating to procedure. It appears from the record that the case came on for trial, before a jury, on September 19th, 1940. On the following day two issues were submitted to the jury. The jury answered one of them, but failed to answer the other, and were thereupon discharged. What took place after that is subject to considerable dispute. Appellants contend that the court withdrew the case from the jury, and himself found upon all issues of fact. Appellees contend that the two issues presented in effect the same inquiry, that all other matters of fact were undisputed, and that judgment was rendered upon the verdict. The recitals in the judgment are not clear. The judgment commences with a recital to the effect that the case came on for trial "on this the 3rd day of October, A. D. 1940." It then recites the appearance of the parties, naming them, then recites the hearing and consideration of the report of a master in chancery, and then recites, "Thereupon came a jury", etc., setting out the submission of said two issues, the answer to one of them, and the failure to answer the other, although it is undisputed that the jury, as above stated, was actually empaneled on September 19th, and discharged upon September 20th. The judgment then recites: "* * * the court discharged said jury, and thereafter upon further hearing and consideration of said cause, the report of said Master in Chancery, exceptions and pleadings of all parties thereto as well as the evidence in this cause, finds as follows:" Following this recital are findings of fact set out in fourteen numbered paragraphs. Among these is an affirmative finding upon the same question which was contained in the issue which the jury did not answer. The judgment does not expressly recite either that the answer of the jury to the other issue was disregarded, or that the case was withdrawn from the jury, or that judgment was rendered on the verdict. Appellees did not except to the judgment thus rendered.

Appellees contend that the case was one tried with a jury, within the meaning of Rule 71a, for the District and County Courts, and Rule 24, for the Courts of Civil Appeals, and that, since no motion for new trial was filed, the assignments of error cannot be considered by us.

Appellants contend that the parties all agreed that the case should be submitted to the court; appellees deny that such an agreement was made.

After much thought and consideration, we have concluded to consider and rule upon appellants' assignments of error and appellees' cross-assignments, despite the fact that no motion for new trial was filed by any party. So far as may properly be done, a presumption of validity should be given to the actions of the trial court. It is apparent to our minds that the trial court made findings on all material fact issues, including the issue upon which the jury could not agree. This he could properly have done if the parties waived a trial by the jury. Since appellees deny that the jury was waived, and since the judgment does not so recite, we are not disposed to hold from the record before us that the jury was waived by the parties. But the trial court also had authority to withdraw the case from the jury and render judgment, under such circumstances as would have warranted an instructed verdict, in the absence of a verdict upon which a judgment could have been rendered. Fitts v. Carpenter, Tex. Civ.App., 124 S.W.2d 420, and cases therein cited. In Handy v. Olney Oil & Refining Co., Inc., Tex.Civ. App., 68 S.W.2d 313, 317, writ of error refused, it is said:

"It is a well-settled general rule that the judge of the trial court retains jurisdiction to alter or change any rulings made by him during the same term of court if in his discretion such change is necessary to do justice to the parties, provided such change is not inhibited by a provision of the statutes or Constitution. And we are cited to no statute or provision of the Constitution or rule of decisions in this state which deprives the trial court of authority to render a judgment such as is complained of in this case under the circumstances related."

The last mentioned case was decided by this Court of Civil Appeals, and was tried in the court below by the same District Judge who tried the case now on appeal. We shall presume, from the record, that the trial court was undertaking to act under authority of the rule laid down in the Handy case, that is to say, that he was proceeding to act upon the theory that there was no verdict upon which a judgment could be rendered, that there were no disputed issues to be submitted to the jury, and that he was authorized to render judgment upon what he considered the undisputed evidence. We shall presume that he was following a method of procedure authorized by law, even though we do not agree with him altogether upon his construction of the evidence.

We hold, therefore, that the action of the trial court was the same, as relating to the requirements of Rule 71a and Rule 24, above cited, as if he had instructed a verdict, and that no motion for new trial was required. We feel that justice requires that appellants be not deprived of an appeal, under the peculiar facts presented by this record.

Crenshaw was the owner of a producing oil lease in Young County. The leasehold estate was encumbered with a first lien securing a large indebtedness owing by Crenshaw to appellant the First National Bank in Graham, Texas, and with a second lien securing a large indebtedness owing by Crenshaw to appellant the Continental Supply Company. Said Bank also had an express lien, securing its said indebtedness, upon the oil being produced from the well. Payments on its note being delinquent, said Bank, in February of 1939, notified the purchaser of the oil that it held such a lien, and thereafter collected the payments made for the oil purchased from the well, and out of this money paid some, if not all, of the expenses of operating the well.

In March of 1939, said Bank loaned...