Lawyers Lloyds of Texas v. Webb

• Decision Date: 25 June 1941
• Docket Number: No. 7864.,7864.
• Citation: 152 S.W.2d 1096
• Parties: LAWYERS LLOYDS OF TEXAS et al. v. WEBB et al.
• Court: Texas Supreme Court

152 S.W.2d 1096

LAWYERS LLOYDS OF TEXAS et al. v. WEBB et al.

No. 7864.

Supreme Court of Texas.

June 25, 1941.

Appeal from the Court of Civil Appeals for the Tenth Supreme Judicial District.

Suit by J. F. Russell and wife against Juanita Webb and another to recover a tract of land wherein Juanita Webb reconvened and sequestered the property, whereupon the plaintiffs with Lawyers Lloyds of Texas and others as sureties and others executed a replevy bond and possession of the land was delivered to the plaintiffs. The judgment was entered against the plaintiffs and the sureties. To review a judgment of the Court of Civil Appeals, dismissing sureties' writ of error, 150 S.W. 2d 181, the sureties bring error.

Judgment of the Court of Civil Appeals reversed and cause remanded to that court with instructions to proceed with hearing of the case in accordance with opinion.

Currie McCutcheon and Bruce Graham, both of Dallas, for Lawyers Lloyds.

Doss Hardin and Gene Maddin, both of Waco, and Norton Fox, of Groesbeck, for Russell et al.

L. W. Shepperd and B. L. Bradley, both of Groesbeck, for defendants in error.

ALEXANDER, Chief Justice.

J. F. Russell and wife brought this suit against Juanita Webb and others to recover a tract of land. Juanita Webb reconvened and sequestered the property. Thereupon Russell and wife replevied the property, Lawyers Lloyds of Texas and others being sureties on the replevy bond. The trial court rendered judgment against Russell and wife and the sureties on said bond. Said sureties on the replevy bond, who are the plaintiffs herein, attempted to appeal to the Court of Civil Appeals by writ of error, but their appeal was dismissed by the Court of Civil Appeals on the theory that they had participated in the trial of the case, and were therefore not entitled to appeal by writ of error. 150 S.W.2d 181.

Acts of 1939, 46th Leg., p. 59, Vernon's Ann.Civ.St. art. 2249a, read as follows:

"Section 1. No party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error.

"Sec. 2. All laws and parts of laws, insofar as they conflict with this Act, are repealed. Writ of error shall continue to be available under the rules and regulations of the law to a party who does not participate in the trial of the case in the trial court.

* * * * *

"Sec. 4. The need that delay of justice be not caused by parties who should reasonably use appeal instead of writ of error and the near approach of the end of the session creates an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days be suspended, and said Rule is suspended and this Act shall take effect from and after its passage, and it is so enacted."

Lawyers Lloyds of Texas and the other plaintiffs in error took no part in the trial of the case prior to the rendition of final judgment, and were not represented therein, except in so far as they were represented as a matter of law through the presence and participation of the plaintiffs, Russell and wife, for whom they were sureties. They did file a motion for new trial.

It will be noted that the statute above quoted does not undertake to take away the right of appeal by writ of error entirely. It denies that right only to one "who participates either in person or by his attorney in the actual trial of the case." (Italics ours.) Ordinarily, the "trial" includes every step taken in the determination of the issues between the parties, and therefore includes the hearing on a motion for new trial. Gulf, C. & S. F. R. Co. v. Muse, 109 Tex. 352, 207 S.W. 897, 4 A.L.R. 613; Pratley v. Sherwin-Williams Co. of Texas, Tex.Com.App., 36 S.W.2d 195. But by the use of the term "actual trial" the Legislature evidently intended to limit or restrict the meaning of the word "trial." The actual trial of a case, as ordinarily understood by the legal profession, is the hearing in open court, leading up to the rendition of judgment, on the questions of law, if the case is disposed of on the questions of law, or on the questions of fact, if the final judgment is rendered on the facts. The statute was intended to cut off the right of appeal by writ of error of those who participate in the hearing in open court in the trial that leads to final judgment. It was not intended to cut off the right of those who discover that a judgment has been rendered against them after the judgment has been...