Hickman v. Swain

Decision Date08 February 1919
Docket Number(No. 8797.)
Citation210 S.W. 548
PartiesHICKMAN v. SWAIN et al.
CourtTexas Court of Appeals

Suit by C. W. Hickman against M. F. Swain and others. There was an order overruling a motion to set aside an order of dismissal, and plaintiff brings error. Reversed and remanded.

Wm. J. Berne, of Ft. Worth, for plaintiff in error.

Brookreson & Howell and James A. Stephens, all of Benjamin, for defendants in error.

DUNKLIN, J.

This suit was instituted by C. W. Hickman on a promissory note executed by M. F. Swain, G. P. Gibner, C. C. Tucker, A. L. Lea, J. W. Smith, G. D. McCarty, R. E. Butler, and W. B. Williams. The note was given in part consideration for a German coach stallion purchased from Crouch & Son, horse dealers doing business in La Fayette, Ind., and the vendors were made payees in the note. In his petition, Hickman alleged that he had acquired the note by purchase from those parties before its maturity for a valuable consideration and without notice of any defense thereto. The suit was instituted originally in Tarrant county, but the venue was changed to Knox county in compliance with the decision of our Supreme Court on a former appeal which involved the issue of venue only. See Hickman v. Swain, 106 Tex. 431, 167 S. W. 209. On August 2, 1915, after the decision of the Supreme Court on the former appeal, the papers in the case were filed in the district court of Knox county, to which court the venue had been changed. The suit was originally filed March 22, 1911, and on May 22, 1911, all of the defendants except J. A. Wood filed their answers to the merits of the case, in which they pleaded specially that they had been induced to purchase the horse by fraudulent misrepresentations made to them by the defendant J. A. Wood, who acted in collusion with and as agent for the vendors in a design to swindle and cheat the buyers. The misrepresentations so made by the said Wood consisted of statements of certain qualities of the horse which were material inducements to the buyers to make the purchase. Such alleged fraudulent misrepresentations were pleaded in bar of plaintiff's suit and also as a basis for a cross-action contained in the answer for damages to be recovered against Crouch & Son and J. A. Wood. But no citation on such cross-action was ever served upon Crouch & Son, nor upon Wood, although Wood filed an answer to the cross-action on August 16, 1915, after the transfer of the cause to Knox county.

The district court of Knox county holds two terms of court each year, one beginning in February and one in August. The suit was continued at the August term, 1915, and also at the February term, 1916; the first continuance being charged to the defendants other than the defendant Wood and the second to plaintiff. At the August term, 1916, the following order was made in the case by the district court of Knox county:

"On this the 14th day of August, A. D. 1916, the above cause being regularly called in its order for trial, the defendants appeared by their respective attorneys, and the defendant Jno. Wood by his attorney demanded a trial upon the cross-action filed herein by the other defendants, the other defendants announced ready for trial upon the cause, but suggested to the court that, in the absence of the plaintiff, their cause was a conditional cross-action, asking for judgment over against the said Jno. Wood only in the event the plaintiff recovered judgment against them, and that, unless plaintiff prosecuted his cause against them, they could not urge their cross-action, and, upon suggestion of counsel, the court is of the opinion that said cause should be dismissed for want of prosecution.

"It is therefore considered, adjudged, and decreed by the court that this cause be and the same is hereby dismissed, both as to plaintiff C. W. Hickman's suit against the defendants M. F. Swain, G. P. Gibner, C. C. Tucker, A. L. Lea, J. W. Smith, G. D. McCarty, R. E. Butler and W. B. Williams, and as to said defendants' cross-action against Jno. Wood, and that the defendants do have and recover of and from the plaintiff C. W. Hickman all costs in this behalf incurred, for which let execution issue.

"It is further considered, adjudged, and decreed by the court that the officers of this court do have and recover of and from both the plaintiff and defendants all costs by them respectfully incurred herein, for which they may have their execution."

After the adjournment of the term during which said order of court was entered, plaintiff filed his motion asking that the order of dismissal be set aside and vacated, and that the cause be tried upon its merits. The defendants Swain, Smith, and Lea filed a reply to that motion, in which they denied the grounds alleged as a basis therefor and prayed that it be overruled, and the same was overruled on March 19, 1917. From that order plaintiff has prosecuted this writ of error.

The order last mentioned contains recitals of the appearances of the defendants Swain, Smith, Lea and Woods, all of whom announced ready to be heard on the motion. Prior to the hearing of said motion, the court, at the instance of the plaintiff, dismissed plaintiff's motion for reinstatement of the case as to the defendants Gibner, Tucker, Butler, and Williams for want of service on them of notice of the motion.

The writ of error bond filed by the plaintiff was made payable to all of the defendants except the defendant Farmer and those as to whom the motion to reinstate the case was dismissed by plaintiff in the trial court, namely, Gibner, Williams, Tucker, and Butler; and appellees Swain, Lea, and Smith, who are the only defendants that have filed briefs in this court, have filed a motion to dismiss the writ of error on the ground that Farmer was not made a beneficiary in the writ of error bond and was not served with citation on the application for the writ of error, it being alleged that Farmer was a material and necessary party to the suit whose rights would be materially affected by the disposition of the suit on its merits. One of the contentions advanced by appellant in reply to that motion is that the order of dismissal, entered at the August term, 1916, did not have the effect to dispose of the case as to Farmer, since, although the inference might be drawn from preliminary recitals in the order that the court intended to dismiss as to all parties, yet, in the decree of dismissal proper, the name of the defendant Farmer was omitted, while the names of other defendants were given. We sustain this contention. In Fitzgerald v. Evans, 53 Tex. 461, it is said that a final judgment should contain:

"(1) The facts judicially ascertained, with the manner of ascertaining them entered of record. (2) The recorded declaration of the court, pronouncing the legal consequences of the facts thus judicially ascertained."

In Texas Land & Loan Co. v. Winter, 93 Tex. 560, 57 S. W. 39, our Supreme Court construed the legal effect of an order of the court reading as follows: "Exceptions of defendants to plaintiff's petition sustained. Plaintiff excepts"—and used the following language:

"The entry made was nothing more than the recorded expression of the ruling of the court sustaining the exceptions. If the dismissal of the case should have logically followed from the ruling made, it was nevertheless essential to the finality of the action of the court that it should have declared such consequence by the judgment pronounced. It is not sufficient to constitute a final judgment that the court make a ruling which should logically lead to a final disposition of the cause, but the consequence of the ruling to the parties must be also declared."

To the same effect, see Eastham v. Sallis, 60 Tex. 576; McAnally v. Haynie, 17 Tex. Civ. App. 521, 42 S. W. 1049; Wilson v. Sparks, 9 Tex. 621; Benge v. Sledge, 62 Tex. Civ. App. 301, 132 S. W. 873. And as the dismissal of the motion to reinstate as against Gibner, Tucker, Butler, and Williams was in legal effect a dismissal of plaintiff's original suit against them, it was not necessary to make them payees in the writ of error bond. Finley v. Jackson, 43 S. W. 41.

Accordingly, the motion to dismiss the writ of error is overruled.

It follows from the conclusion just stated that the order entered at the August term, dismissing as to certain of the defendants, was not a dismissal as to the defendant Farmer, but was interlocutory only as to him. We conclude further that it was not a dismissal of the plaintiff's cause of action as against Wood, since it does not purport to so declare. It does specifically decree a dismissal of the cross-action against Wood filed by the other defendants.

It appears that no citation upon plaintiff's petition was ever served upon defendant Wood requiring him to answer plaintiff's suit, but, as noted already, he appeared by an attorney and filed an answer to the cross-action. That constituted an appearance for all purposes, and it was not necessary for plaintiff to serve with citation as a predicate for a recovery against him. Sullivan v. Doyle, 108 Tex. 368, 194 S. W. 136; A., T. & S. F. Ry. Co. v. Stevens (Sup.) 206 S. W. 921.

The only question then remaining is whether or not the court erred in refusing to vacate the order of dismissal as to defendants other than Farmer and Wood. The trial judge filed the following findings of fact and conclusions of law upon which he predicated his judgment refusing to reinstate the suit:

"The court finds that this case was filed in the district court of Knox county on the 2d day of August, A. D. 1915. At the first term of said court after said suit was filed, this cause was continued on application of defendants, same being August term, A. D. 1915. At the next term of court, February term, A. D. 1916, this cause...

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