Golden v. Odiorne

• Decision Date: 04 April 1923
• Docket Number: (No. 366-3352.)
• Citation: 249 S.W. 822
• Parties: GOLDEN v. ODIORNE.
• Court: Texas Supreme Court

Page 822

249 S.W. 822

GOLDEN v. ODIORNE.

(No. 366-3352.)

Commission of Appeals of Texas, Section B.

April 4, 1923.

Certified Question from Court of Civil Appeals of Third Supreme Judicial District.

Action by J. E. Odiorne against Mrs. W. C. Golden. Judgment for plaintiff, and defendant appealed to the Court of Civil Appeals, which certified a question to the Supreme Court. Question answered.

Walker & Burleson, of San Saba, for appellant.

Walters & Baker, of San Saba, for appellee.

McCLENDON, P. J.

This case is presented upon the following certificate from the Court of Civil Appeals:

"Appellee brought suit against appellant to recover of appellant $260.77, and for cause of action alleged that appellant employed him to purchase notes for her; that in the course of his dealings under such employment he purchased for her certain notes; and `that at the time of such purchase the price paid for same was $260.77 more than her funds amounted to, in the hands of plaintiff, and said excess was supplied by plaintiff for defendant at that time, in order to handle said notes, as an accommodation for defendant.'

"Appellant demurred, generally and specifically, that it was not alleged in plaintiff's petition that defendant authorized him to purchase notes in excess of her funds in his hands, nor that she had promised to pay plaintiff said sum of $260.77, or that she had ever been obligated to pay plaintiff said sum. In addition to the defects pointed out by appellant's demurrer, the petition did not allege that appellant had accepted said notes, or claimed them, or had in any way ratified the purchase of same.

"The court overruled both the general and special exceptions. In this we hold the court committed error. The case was submitted to a jury upon special issues, in response to which the jury found that appellant promised to pay appellee the difference between the notes and the cash belonging to her invested in same; that appellee used $260.77 of his own money in the purchase of said notes; and that appellant appropriated the notes to her own use and claims the same. Judgment was rendered for appellee.

"There is no statement of facts or bill of exception in the record, for which reason we presume, in support of the judgment, that there was no objection to the testimony offered on the trial of the cause, and that the evidence sustains the findings of the jury. Rule 62a (149 S. W. x) is as follows:

"`No judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court; and if it appear to the court that the error affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error: Provided, if the erroneous action or failure or refusal of the trial judge to act shall prevent the proper presentation of a cause to the Court of Civil Appeals, and be such as may be corrected by the judge of the trial court, then the judgment shall not be reversed for such error, but the appellate court shall direct the said judge to correct the error, and thereafter the Court of Civil Appeals shall proceed as if such erroneous action or failure to act had not occurred.'

"The question which we certify to your honorable court is:

"Where a trial court commits an error of law in overruling demurrers, either general or special, and when the ruling upon the general demurrer constitutes fundamental error, as in this case, but upon the trial the judgment rendered is such as the plaintiff was entitled to recover upon the merits of the case, should the judgment be affirmed by the Court of Civil Appeals under authority of rule 62a?

"A member of this court, in Railway Co. v. Bartek, 177 S. W, 143, having questioned the constitutionality of that portion of rule 62a which might apply to this case, we respectfully request the court to pass upon that question, as well as upon the application of the rule under the facts herein stated."

By the Constitution of 1876 the Supreme Court was given power —

"to make rules and regulations for the government of said court, and the other courts of the state, to regulate proceedings and expedite the dispatch of business therein." Article 5, § 25.

This section was amended in 1891 so as to read:

"The Supreme Court shall have power to make and establish rules of procedure, not inconsistent with the laws of the state, for the government of said court and the other courts of this state, to expedite the dispatch of business therein."

In 1892 the Legislature enacted a statute in substantially the same language as this amended article of the Constitution. R. S. art. 1524. The power thus granted to the Supreme Court is expressly made subordinate to the power of the Legislature to regulate matters of practice and procedure in the courts, and in construing rules promulgated by the Supreme Court this limitation upon its power must be taken into consideration.

In construing rule 24 of the Court of Civil Appeals (142 S. W. xii), the Supreme Court, in Railway v. Beasley, 106 Tex. 170, 155 S. W. 187, say:

"The language of the rule is not quite clear, but the Supreme Court cannot by rule set aside a statute; therefore rule 24 must be construed so as to harmonize with the articles of the Revised Statutes, copied herein, and with the former decisions of this court."

Rule 62a was promulgated October 30, 1912, and became effective November 15, 1912, 149 S. W. x. Prior to its promulgation, it was the general rule, established by a long line of decisions in this state, that any error of law committed in the trial of a cause was presumed to be prejudicial, and required a reversal, unless it could be said from a consideration of the entire record that injury to the complaining party did not result. 1 Michie's Digest, p. 768.

The evident purpose of rule 62a was to prevent the reversal of trial court judgments for technical and unsubstantial errors, and to cast the burden of showing prejudice upon the party complaining of the erroneous ruling, so far, at least, as it was within his power to do so. We find nothing in the language of the rule which even intimates that the statutes governing practice and procedure were intended to any degree to be abrogated. On the contrary the rule seems to have been carefully drawn so as to preserve every substantial right of a litigant, and to require a reversal where the error complained of "was reasonably calculated to cause, and did probably cause, the rendition of an improper judgment in the case."

Under the doctrine of harmless error, our courts have always declined to disturb a ruling or judgment of the trial court, although palpably erroneous, where it appeared that no injury resulted to the complaining party. Rule 62a merely enlarged this doctrine, so as to cast upon the complaining party the burden of showing at least that the error probably resulted to his prejudice. It was not the purpose of the rule, we think, to require the complaining party to demonstrate that, but for the erroneous ruling, a different judgment would have resulted. Such interpretation would in many cases operate as the denial of a substantial right.

The various Courts of Civil Appeals have applied the rule in a large number of cases (see S. W. Rep. Digest, vols. 12 to 17, under Appeal and Error, § 1170); but rarely has the rule been referred to by the Supreme...