Latimer v. State, 6303

Citation328 S.W.2d 242
Decision Date04 June 1959
Docket NumberNo. 6303,6303
PartiesJames L. LATIMER et ux., Appellant, v. STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Black & Lindsey, Port Arthur, for appellant.

W. G. Walley, Jr., Beaumont, for appellee.

ANDERSON, Chief Justice.

This cause, a condemnation proceeding, is before us on appeal from the county court, at law, of Jefferson County. The appellee has filed motion to dismiss the appeal, setting up that since the appeal was perfected, the appellee tendered to appellants and appellants voluntarily accepted all sums due under the judgment of the lower court. The motion is verified and supported by exhibits, and has not been answered or contested by appellants. We therefore feel justified in accepting as true the allegations made in it. We sustain the motion. The rule is thus stated in Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004;

'A litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterwards prosecute an appeal therefrom. That is the general rule which appears to be universally recognized. It was announced by this court in the early case of Matlow v. Cox, 25 Tex. 578. The rule is based on the principle of estoppel. It, however, is subject to the exception that '* * * where the reversal of a judgment cannot possibly affect an appellant's right to the benefit secured under a judgment, then an appeal may be taken, * * *.' 2 Am.Jur. Appeal and Error, Sec. 215. Numerous authorities, approaching the exception from a slightly different angle, define it, in effect, in this language: Where an appellant accepts only that which appellee concedes, or is bound to concede, to be due him under the judgment he is not estopped to prosecute an appeal which involves only his right to a further recovery.'

The case at bar is within the rule but not within the exception. Appellants have no legal assurance that upon another trial they would be awarded as much as was awarded by the judgment from which the appeal was taken. Appellee has never conceded and is not bound to concede that it is intrinsically indebted to appellants for as much as was awarded by the judgment. It did not tender any sum of money to appellants until after the judgment was rendered, did not tender any sum of money in court, and did not enter upon and take possession of appellants' land upon the strength of any of the proceedings preceding judgment.

The appeal is accordingly dismissed at the cost of appellants.

On Motion for Rehearing.

Appellants have seasonably filed two motions seeking reinstatement of their appeal. One is presented under the guise of a motion to set aside the order of dismissal and reinstate the appeal; the other, under the guise of an ordinary motion for rehearing.

No complaint is made that the original opinion did not correctly state the facts of the case, but the motions do make apparent that originally we were under a misapprehension about one matter which we wish to clarify. Payment of the judgment was not made direct to appellants. Instead, the money was paid into the registry of the court, presumably subject to appellants' order, and was from there withdrawn by appellants. We are not advised as to whether appellee entered into possession of the condemned property after paying the money into the court registry, but shall...

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9 cases
  • Med Center Bank v. Fleetwood, 3-91-584-CV
    • United States
    • Court of Appeals of Texas
    • May 19, 1993
    ...River & Beach Land Corp. v. O'Donnell, 632 S.W.2d 885, 889 (Tex.App.--Corpus Christi 1982, no writ); Latimer v. State, 328 S.W.2d 242 (Tex.Civ.App.--Beaumont 1959, writ ref'd n.r.e.); Gaulding v. Gaulding, 256 S.W.2d 684 (Tex.Civ.App.--Dallas 1953, no writ). In this cause, the "benefit" of ......
  • HARLOW LAND CO., LTD. v. CITY OF MELISSA
    • United States
    • Court of Appeals of Texas
    • June 17, 2010
    ...doctrine. L.P.D. v. R.C., 959 S.W.2d 728, 731 (Tex.App.-Austin 1998, pet. denied); see Latimer v. State, 328 S.W.2d 242, 242 (Tex.Civ.App.-Beaumont 1959, writ ref'd n.r.e.). If the doctrine applies, the appeal is rendered moot, and the proper disposition is dismissal. Bloom v. Bloom, 935 S.......
  • City of Mesquite v. Rawlins
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • January 27, 1966
    ......'I enclose herewith CASHIER'S CHECK on the EMPIRE STATE BANK OF DALLAS, numbered A 92020, in payment thereof. 'Very truly yours,. /s/ J. A. Rawlins'. ... In the case of Latimer, et ux. v. State of Texas, 328 S.W.2d 242, (Tex.Civ.App.) 1959, writ refused, n. r. e., a ......
  • 1998 -NMCA- 48, Board of Educ., Rio Rancho Public School Dist. v. Johnson, 18721
    • United States
    • Court of Appeals of New Mexico
    • February 25, 1998
    ...(Moreover, in a situation like that before us on appeal, Texas law holds that the landowner is not entitled to appeal. Latimer v. State, 328 S.W.2d 242 (Tex.Civ.App.1959)). In Buckhannon & Northern Railroad Co. v. Great Scott Coal & Coke Co., 75 W.Va. 423, 83 S.E. 1031 (1914), the appellant......
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