Fitzgerald v. Browning-Ferris Mach. Co.

• Decision Date: 31 March 1932
• Docket Number: No. 1250.,1250.
• Citation: 49 S.W.2d 489
• Parties: FITZGERALD et al. v. BROWNING-FERRIS MACH. CO.
• Court: Texas Court of Appeals

49 S.W.2d 489

FITZGERALD et al. v. BROWNING-FERRIS MACH. CO.

No. 1250.

Court of Civil Appeals of Texas. Waco.

March 31, 1932.

Rehearing Denied May 5, 1932.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Action by the Browning-Ferris Machinery Company against H. E. Fitzgerald and another. From judgment for plaintiff, defendants appeal.

Affirmed.

W. B. Harrell, of Dallas, and Kerr & Gayer, of San Angelo, for appellants.

Leachman & Gardere, of Dallas, for appellee.

GALLAGHER, C. J.

Appellee, Browning-Ferris Machinery Company, a corporation, sued appellants, H. E. Fitzgerald and W. S. Thompson, to recover a balance due on a written contract signed by them for the purchase of certain machinery and for a foreclosure of the lien thereon created by such contract. Castor & Ward Bros., a partnership composed of John H. Castor, B. H. Ward, and R. H. Ward, were made parties defendant, and were alleged to be asserting some claim to said machinery, the nature of which was unknown to appellee. The suit was subsequently discontinued as to said partnership and continued with appellants as sole defendants. Appellants filed pleas of privilege and pleas in abatement. They answered to the merits by general denial and pleas of non est factum and of discharge by reason of material alteration of the instrument sued on. They further alleged that the machinery was purchased by Fitzgerald for a partnership composed of himself and John H. Castor; that Fitzgerald sold his interest therein to said firm of Castor & Ward Bros.; that they assumed the payment of the balance due on said machinery; that appellee had notice of such sale and the terms thereof, and agreed to accept said firm as principal debtors and to release Fitzgerald. They further alleged that appellee, without appellants' knowledge or consent, entered into a valid agreement with Castor & Ward Bros. extending the time of payment of the balance of such indebtedness, and that they were thereby discharged from all liability therefor.

The case was tried to a jury. Pending such trial, the issues arising on appellants' pleas of privilege were withdrawn from the jury by agreement and submitted to the court for determination. The issues submitted to the jury were numerous. We abridge their findings in response thereto as follows:

(1) Appellee was the owner of the indebtedness sued on and the lien securing the same. Such indebtedness was past due and unpaid, and appellants had failed and refused to pay the same.

(2) Appellants Fitzgerald and Thompson both signed the contract sued on and the same had not been altered.

(3) Appellant Thompson was a joint purchaser of said machinery with Fitzgerald, and the contract at the time Thompson signed it contained a statement that he guaranteed the same along with Fitzgerald. Appellee did not know at the time said contract was executed that the machinery described therein was purchased for a partnership composed of said Fitzgerald and Castor.

(4) Appellee did not agree with Castor & Ward Bros. to extend the time of payment of the balance due on said contract.

(5) Appellee, shortly after the institution of the suit, leased or rented said machinery to Castor & Ward Bros. They paid $500 cash and agreed to pay $500 per month so long as they used said machinery. They took possession of the machinery under such agreement. Such rental agreement was on condition that Castor & Ward Bros. secured a gravel contract from one L. E. Whitman. Such contract was not secured. The reasonable cash value of said machinery at that time was $2,400.

The court overruled appellants' pleas of privilege, and rendered judgment on the verdict of the jury in favor of appellee against both appellants for the balance due on the purchase price of said machinery in the sum of $3,215.62, foreclosing a lien thereon and ordering the same sold and the proceeds applied to the satisfaction of such recovery. Said judgment contained a clause denying appellee all relief not expressly granted therein. Appellants present said judgment to this court for review on various assignments of error.

Opinion.

This court is without jurisdiction to review the judgment of the trial court, unless the same is a final one. The issue of jurisdiction is fundamental, and must be considered and determined by the court whether raised by either party to the appeal or not. While such issue has not been formally raised in this case, contention has been made herein incidentally that the judgment appealed from is not final because it does not make any disposition of the firm of Castor & Ward Bros. or their rights, if any, in the premises. Decision of such issue is therefore invoked. Boone v. Anderson (Tex. Civ. App.) 45 S.W.(2d) 629, and authorities there cited; Kosse National Bank v. Derden (Tex. Civ. App.) 36 S.W.(2d) 295, 296, pars. 1 to 4, inclusive, and authorities there cited; St. Louis S. W. Ry. Co. v. Texas Packing Co. (Tex. Civ. App.) 253 S. W. 864, 867, par. 11. Appellee instituted this suit on October 21, 1929, and made Castor & Ward Bros. parties, alleging that they were claiming some interest in the mortgaged property, but that such interest, if any, was inferior to its rights under its lien. Citation for service upon them was duly issued, and they testified that the same had been served upon them. Neither of them entered an appearance in the case. The court, on July 31, 1930, made a docket entry awarding appellee an interlocutory judgment with writ of inquiry against them. No entry of such judgment upon the minutes was made. Appellee thereafter, on August 29, 1930, filed an amended original petition. Castor & Ward Bros. were not named as parties defendant, and no reference was made to them. Appellants thereafter filed a plea in abatement in which they contended that Castor & Ward Bros. had purchased the machinery, assumed the balance of the purchase price due thereon, and that appellee had accepted them as principal debtors, and that appellants thereby were either released or became mere sureties. Based on such allegation, they asked that the suit be dismissed against them because Castor & Ward Bros. were not parties thereto. Trial was begun June 22, 1931, but judgment on the verdict of the jury was not rendered until September 5, 1931. Said judgment, as aforesaid, denied appellee all relief not expressly granted therein. The action of appellee in amending its petition and omitting therefrom the names of Castor & Ward Bros. and all reference to them, and proceeding to trial and final judgment thereon, was tantamount to a dismissal or discontinuance as to said defendants, and the judgment is final, notwithstanding it does not purport to make any disposition of them or their rights, if any, in said machinery. San Antonio & A. P. Ry. Co. v. Mohl (Tex. Civ. App.) 37 S. W. 22 (writ refused); St. Louis S. W. Ry. Co. v. Texas Packing Co., supra, 253 S. W. page 867, par. 12; Brown v. Gorman Home Refinery (Tex. Civ. App.) 276 S. W. 787, 788, par. 3, affirmed Comer v. Brown (Tex. Com. App.) 285 S. W. 307, 308, par. 1; MacLachlan v. Pease, 171 Ill. 527, 49 N. E. 714, 715; Rogers v. Bass & Harbour Co., 47 Okl. 786, 150 P. 706, 708, par. 5; 18 C. J. p. 1205, § 141, and authorities cited in note 97.

Appellants contend that the court erred in overruling their respective pleas of privilege, in which they each asked that the case be transferred to Tom Green county for trial. Citations in this case were returnable December 2, 1929. Appellant Thompson filed his plea of privilege on that day. Appellee filed its affidavit controverting said plea on December 6, 1929. Hearing thereon was postponed by mutual consent to some indefinite time in the future, but appellee neglected to have an order to that effect entered of record. On March 7, 1930, appellee amended its controverting affidavit, and on February 23, 1931, filed a trial amendment thereto. Appellee on said date also filed a pleading purporting to be an answer to a motion by appellant Thompson to transfer the case to Tom Green county on his plea of privilege. No such motion appears in the transcript. Appellee alleged in its said answer, in substance, that hearing on said plea of privilege had been postponed from time to time for the convenience of said Thompson or his attorney and by mutual agreement, and that he was estopped to assert that a hearing thereon had been waived or forfeited by appellee. No action by the court at that time is shown in the transcript. Appellant Fitzgerald on March 4, 1931, filed for the first time his plea of privilege, and appellant Thompson amended the plea of privilege theretofore filed by him. Appellee immediately filed a plea controverting appellant Fitzgerald's plea of privilege. It appears, however, that, while appellee's attorney signed an affidavit that the facts alleged in said plea were true, the purported jurat thereto was unsigned. No action on said plea was invoked or had within sixty days after the filing of the same, nor was there an order entered of record continuing the same for future determination. On June 27, 1931, appellee filed a further plea controverting all of appellants' pleas of privilege, which plea was duly verified. Appellee alleged therein that appellants had repeatedly at various times extending from December, 1929, to the time of trial in June, 1931, indicated and agreed that the matter of hearing upon said pleas of privilege might be had at some subsequent time, and that on several occasions the case was set for trial and postponed at the special instance and request of appellants.

Appellee further alleged that said requests for postponement made by appellants and acquiesced in by it contained no reference to the preservation of appellants' rights, if any, under their said pleas of privilege. It further alleged that the delay in having a hearing on said pleas and its affidavits controverting the same had not resulted from any lack of diligence on its part, but was the...