Fort Worth & Denver City Ry. Co. v. Reid

• Decision Date: 25 February 1938
• Docket Number: No. 13685.,13685.
• Citation: 115 S.W.2d 1156
• Parties: FORT WORTH & DENVER CITY RY. CO. v. REID et al.
• Court: Texas Court of Appeals

115 S.W.2d 1156

FORT WORTH & DENVER CITY RY. CO. v. REID et al.

No. 13685.

Court of Civil Appeals of Texas. Fort Worth.

February 25, 1938.

Rehearing Denied April 29, 1938.

Appeal from District Court, Wichita County; Ernest Robertson, Judge.

Suit in the form of a bill of review by Mrs. Mamie Reid and others against Fort Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Carrigan, Hoffman & Carrigan, of Wichita Falls, and Thompson & Barwise and Luther Hudson, all of Fort Worth, for appellant.

E. W. Napier, of Wichita Falls, for appellees.

SPEER, Justice.

This is a suit in equity, in form of a bill of review, growing out of a judgment entered in the 89th district court of Wichita county on May 11, 1932, in favor of Mrs. Mamie Reid, individually and as next friend for her minor children, to all of whom we shall refer as plaintiffs, against Fort Worth & Denver City Railway Company, to which we shall refer as defendant.

Plaintiffs alleged as grounds for the relief sought that on March 11, 1932, the defendant was operating its line of railway into and through Wichita county, Tex.; that on said date, M. E. Reid, the husband of Mamie Reid and father of the other plaintiffs, while attempting to cross the tracks of defendant, was struck by one of its locomotives and killed; that on the following day, to wit, March 12, 1932, the agents of defendant began negotiating with plaintiffs for a settlement of claims by them, growing out of the death of said M. E. Reid; that the said Mamie Reid was sick and shocked by the tragedy, and was unfamiliar with business matters and ignorant of their rights and remedies against defendant; that all plaintiffs, except Mamie Reid, were minors and could not act for themselves; that on about May 11, 1932, Mamie Reid, for herself and for the other plaintiffs, agreed with defendant upon a settlement of said claim for the sum of $5,125, whereupon the defendant filed a suit in said 89th district court on behalf of plaintiffs against itself, and that on the same day an agreed judgment was entered by the court for the said sum of $5,125, which said amount was apportioned by the court, among plaintiffs, in the sum of $3,625 to Mamie Reid, and $250 to each of the other plaintiffs. That at the time of said settlement, filing of suit, and entry of judgment, Mamie Reid, by reason of bad health and the shock to her nerves incident to the death of her husband, was temporarily of unsound mind and incapable of entering into said transactions. Allegations are made that the said Mamie Reid was at the time of filing this proceeding of sound mind and was desirous of having said former suit reviewed, and the judgment entered therein set aside. That no motion for new trial was filed in the former suit, no appeal taken therefrom, and that the amount thereof had been paid by defendant to plaintiffs, and that the term of court at which the judgment was rendered had long since expired and said judgment became final. Prayer was that upon hearing said former judgment be set aside and vacated, and for general and special relief.

The defendant answered by general demurrer and special answers. In the view we take of this appeal, it is not necessary that we now set out the nature of said special answers.

The demurrer was overruled by the court, and the cause went to trial before a jury; in response to a special issue the jury found that Mamie Reid was of unsound mind when the former suit was filed and the judgment entered. Whereupon, the court entered judgment to that effect and set aside, vacated, and held for naught the original judgment as prayed for by plaintiffs. The defendant has perfected its appeal from the judgment so entered.

At the outset, we are confronted with a motion by plaintiffs to dismiss this appeal, upon the ground that the judgment appealed from was not a final one. It is urged in the motion that the only issue submitted to the jury upon the trial was one inquiring if Mamie Reid was of sound mind when the former court proceedings were had, and that upon that issue alone the court entered judgment setting aside the former judgment, and that there was no proof offered and no disposition made by the court of the question of damages, and therefore the judgment was not final, and this court is without jurisdiction to hear the appeal.

We think the judgment is sufficient to support this appeal. It meets all the statutory requirements, and disposed of every matter that was before the court. As we shall presently show, if the court had undertaken to do more than was done, it would have been beyond the scope of the pleadings and testimony. The motion correctly recites that no proof was offered and no disposition was made by the court of the question of damages. Plaintiffs' pleadings in no way raised that question, nor is it contended by plaintiffs that the matter of damages was in any manner before the court; hence, no proof could have been offered on that point, and, of course, absent pleadings and proof the judgment could not include it.

The contention of plaintiffs made in their motion to dismiss the appeal because of a lack of final judgment would be good if the petition had contained allegations of liability on the part of defendant for which a recovery of damages would lie, and these allegations had been supported by proof. For it has often been held by our courts that where such allegations are made in an equitable proceeding to review a former judgment, and are supported by testimony, the court may set aside the former judgment, and enter a proper one; and, further, when such pleadings and proof are before the court and...