Freeman v. W. B. Walker & Sons

• Decision Date: 18 February 1915
• Docket Number: (No. 5396.)
• Citation: 175 S.W. 1133
• Parties: FREEMAN et al. v. W. B. WALKER & SONS.
• Court: Texas Court of Appeals

175 S.W. 1133

FREEMAN et al. v. W. B. WALKER & SONS.

(No. 5396.)

Court of Civil Appeals of Texas. Austin.

February 18, 1915.

On Motion for Rehearing, March 24, 1915.

On Second Motion for Rehearing, May 5, 1915.

Appeal from Travis County Court; Wm. Von Rosenberg, Jr., Judge.

Action by W. B. Walker & Sons against Thomas J. Freeman, Receiver of the International & Great Northern Railway Company, and another. From a judgment for plaintiffs, defendants appeal. Affirmed in part, and in part reversed and rendered.

See, also, 175 S. W. 455.

Fisher & Fisher and Robert L. Thompson, all of Austin, and Wilson, Dabney & King, of Houston, for appellants. F. C. Morse and A. S. Phelps, both of Austin, for appelles.

RICE, J.

This suit was originally brought in the justice's court by appellees against Thomas J. Freeman, receiver of the International & Great Northern Railway Company, to recover damages to a shipment of syrup from Taylor to Austin, over said road.

The receiver replied by general denial and a plea of two years' limitation. On trial appellees recovered judgment for the amount sued for, being the value of said syrup, together with $5 freight charges thereon, as well as $10 attorney's fee, from which an appeal was taken to the county court. There said receiver, on August 8, 1913, filed an amended answer, setting up, besides the defenses urged in the justice's court, a plea in bar, alleging his appointment and subsequent discharge by the United States Circuit Court for the Western District of Texas as receiver of the International & Great Northern Railway Company, and the sale and conveyance by him during such receivership of all the properties, rights, and franchises of said company, and also a plea urging that the loss, if any, to the shipment of syrup was due to its fermented condition at the time of shipment.

Thereupon appellees filed their motion to make the purchaser, the International & Great Northern Railway Company, a party defendant, which motion was granted, and said company, having been served with citation, appeared at the next term and filed its motion to quash same, which motion was overruled. It then filed its plea in abatement, urging want of jurisdiction in the county court as to it, for the reason that it had not been made a party defendant in the justice's court, and that the amount in controversy was less than the original jurisdiction of said county court. This plea in abatement, together with the plea of discharge of defendant Freeman, was overruled. Thereupon the railway company filed its original answer, containing a general demurrer, special exceptions under the two and four years' statutes of limitation, and likewise pleaded limitation of two and four years, and that the fermented condition of the syrup at the time of its shipment caused the loss.

Trial before the court resulted in a judgment against both defendants for the entire amount sued for, with a stipulation that execution should issue only against the International & Great Northern Railway Company, from which judgment both defendants have appealed.

We think the court erred in overruling the receiver's plea in bar. The discharge of the receiver by the federal court pending litigation operated as a complete bar from further liability against him as such, and it became the duty of the court, upon pleading and proof showing said fact, to dismiss the proceedings against him. See Fordyce & Swanson, Receivers, v. Dubose, 87 Tex. 78, 83, 26 S. W. 1050; Brown v. Gay, 76 Tex. 446, 13 S. W. 472; Ryan v. Hays, 62 Tex. 47; Howe v. St. Clair, 8 Tex. Civ. App. 101, 27 S. W. 801; Tex., etc., Ry. Co. v. Watson, 24 S. W. 952. And this is true although the receiver did not plead his discharge in the justice's court. The trial being de novo in the county court, it was proper to make such defense on appeal. See R. S. 1911, arts. 759, 760, 1950; Curry v. Terrell, 1 White & W. Civ. Cas. Ct. App. § 239; Blanton v. Langston, 60 Tex. 149, approved in White Dental Mfg. Co v. Hertzberg, 92 Tex. 529, 50 S. W. 122. See, also Davis v. Morris, 52 Tex. Civ. App. 184, 114 S. W. 684; Y. M. C. A. v. Schow Bros., 161 S. W. 931. Nor was this error rendered harmless by the recital that execution should only issue against his coappellant, because such judgment was final against the receiver, notwithstanding such provision. See Bludworth v. Poole, 21 Tex. Civ. App. 551, 53 S. W. 719; vol. 1, Black on Judgments, p. 8, § 4; 23 Cyc. 669.

It is urged on the part of the railway company, however, that it could not be made a party defendant to this proceeding while the case was pending on appeal in the county court; and that therefore the court erred in not sustaining its plea setting up want of jurisdiction on the ground that the amount in controversy, exclusive of interest, did not exceed the sum of $200, wherefore it was entitled to the benefit of a trial first in the justice's court, and could not lawfully be required to answer originally in the county court. By virtue of articles 6624, 6625, Revised Civil Statutes of 1911, the property and franchises purchased by appellant company from the receiver of said company passed to the latter, charged with and subject to the payment of all subsisting liabilities and claims against same in the hands of the receiver, where the same were not barred by limitation, as therein provided. So that the company in this case, by reason of said purchase, took said property subject to this particular claim. This being true, appellees had the right, we think, to enforce payment of such claim against it. Appellant company cites, in support of its contention, Constitution of Texas, art. 5, §§ 16, 19; Rev. Stats. 1911, arts. 1767, 2291; Mo. Pac. Ry. Co. v. Wallis, 29 S. W. 1123; Butler v. Holmes, 29 Tex. Civ. App. 48, 68 S. W. 52; Land Mortgage Bank v. Voss, 29 Tex. Civ. App. 11, 68 S. W. 732; Gulf, etc., Ry. Co. v. Ford, 3 Willson, Civ. Cas. Ct. App. § 147; 2 Cyc. 784, 785.

On appeal from the justice to the county court, the case must be tried de novo, just as if originally brought in that court. The necessity for making appellant a party did not arise until the receiver filed his plea in abatement, whereupon the appellees immediately responded, asking that appellant railway company be made a party. This court, in the case of Marshall v. Stubbs, 48 Tex. Civ. App. 158, 106 S. W. 435, in an opinion delivered by Mr. Chief Justice Fisher, held that, on appeal from the county court to the district court in a probate proceeding, new parties might be made pending the appeal. See, also, Davis v. West Texas Bank & Trust Co., 116 S. W. 393; Grayson v. Hollingsworth, 148 S. W. 1135; Mo. Pac. Ry. Co. v. Smith (Sup.) 16 S. W. 803. In Davis v. West Texas Bank & Trust Co., supra, it was expressly held that on appeal to the county court from a judgment in garnishment proceedings before a justice, in which an attempt was made to bring in other claimants to the fund garnished than the judgment debtor, the county court might allow the intervention of such claimants. Cyc., in discussing this question, says:

"As a general rule, on appeal from a judgment of the justice of the peace the issues cannot be changed, as by setting up a new cause of action, but the cause must be tried in the appellate court upon the same issues that were presented in the court from which the appeal was taken. The rule, however, does not apply to new matter, such as payment, release, and what may have arisen after the trial below." 24 Cyc. 724b, and notes to cases from many states.

The same author further says:

"The cases, even those in the same jurisdiction, are greatly at variance as to the extent to which amendments as to parties may be allowed on appeal from justices of the peace. As a general rule, however, the appellate court may, in its discretion, and to promote the ends of justice, allow such amendments as to parties as do not change the cause of action. But, where a new party defendant is brought in by amendment, the court can acquire no jurisdiction to render judgment against him without due service of summons or an authorized appearance." 24 Cyc. 733, 734, and cases noted.

Our statute does not prohibit the making of new parties on appeal; the law abhors a multiplicity of suits. The refusal to permit the making of new parties in some instances would defeat the ends of justice, as where limitation might run in the meantime, if a new suit had to be filed, as contended by appellants. We believe in the instant case that justice is best subserved by holding that appellant company was properly made a party defendant, and therefore overrule its assignment complaining of the action of the court in this respect.

With reference to the plea of two years' limitation, we find that the suit was brought against the receiver in 1911, before the statute of limitation had run; and appellant company, by reason of its purchase from the receiver, assumed whatever liability there might be attached to the property at the time of its purchase and the receipt thereof, which occurred on the 16th of September, 1911. The pleading making it a party was filed on the 8th of August, 1913, and service had thereon on the 11th of said month, which was within less than two years from the time of its purchase, so that said plea is not well taken. This action, however, was based on a bill of lading, and arose from failure to deliver part of the syrup, which was lost on account of the alleged negligence of appellant; and in such cases the four years' statute of limitation, instead of the two, seems to apply. See Williamson & Co. v. Tex. & Pac. Ry. Co., 166 S. W. 692; Elder, Dempster & Co. v. Railway Co., 105 Tex. 628, 154 S. W. 975. Besides this, the facts show, and the court found, that the delay in filing suit was occasioned by reason of a promise of payment on the part of appellant for the damages sustained, and this promise was based on appellees' forbearance to sue, for which reason the...