Lewis v. Hill

• Decision Date: 20 June 1968
• Docket Number: No. 375,375
• Citation: 429 S.W.2d 572
• Parties: H. C. LEWIS, Appellant, v. L. C. HILL, Appellee. . Tyler
• Court: Texas Court of Appeals

Page 572

429 S.W.2d 572

H. C. LEWIS, Appellant, v. L. C. HILL, Appellee.

No. 375.

Court of Civil Appeals of Texas Tyler.

June 20, 1968.

Evans, Pharr, Trout & Jones, Wm. H. Evans, Lubbock, for appellant.

Nelson, McCleskey & Harriger, Johnny R. Phillips, Lubbock, for appellee.

MOORE, Justice.

Plaintiff, H. C. Lewis, brought suit against L. C. Hill, defendant, for a release of a judgment theretofore rendered against him in Cause No. 46807, styled L. C. Hill vs. H. C. Lewis, in the 72nd District Court of Lubbock County.

Lewis alleged that although he tendered Hill the full amount due under the judgment, including costs and interest thereon from the date of the judgment rendered by the Court of Civil Appeals, Hill refused to execute a release and likewise refused to execute a deed to him to partnership property as provided for in the judgment. His prayer was for a release of the judgment and for an order requiring Hill to execute a deed to certain partnership property as provided for in the judgment. Hill resisted the suit on the ground that he was entitled to interest on the judgment from the date same was rendered in the District Court rather than the date of the judgment in the Court of Civil Appeals. He also resisted the suit because Lewis insisted on deducting all of the court costs incurred in the appellate court as a result of the appeal perfected by Lewis.

The controversy was submitted to the trial court upon an agreed stipulation of facts. A brief summary of the stipulations, as well as the other undisputed facts, shows Lewis and Hill were formerly engaged in a partnership. By mutual agreement, the parties agreed to dissolve the partnership. Lewis continued to operate the business. Thereafter, Hill filed a suit in the District Court of Lubbock County for the dissolution and accounting of the partnership assets. That suit was styled L. C. Hill vs. H. C. Lewis and was filed in the 72nd District Court of Lubbock County, Texas, under Cause No. 46807. That suit resulted in a judgment in favor of Hill for the sum of $41,551.82 which was dated February 24, 1966, however the judgment failed to mention anything with regard to interest. Thereafter, Lewis perfected an appeal to the Court of Civil Appeals in Amarillo. Lewis contended on appeal that the judgment of the lower court was excessive in that it allowed Hill a recovery of a salary from the partnership in the amount of $16,187.50. The Court of Civil Appeals sustained his contention and reformed the judgment reciting in its opinion that the judgment of the District Court was 'reversed and reformed by reducing the amount of recovery by Hill against Lewis by $16,187.50, and as so reformed, affirmed.' The judgment as reformed by the court awarded Hill a recovery of $25,364.32 and was dated November 28, 1966. The opinion of the Court of Civil Appeals is reported in 409 S.W.2d 946.

After the judgment of the Court of Civil Appeals had become final, Lewis paid all court costs in both the district and appellate courts and on January 24, 1967, tendered Hill the amount of the judgment with interest thereon at the rate of six per cent from the date of the judgment in the Court of Civil Appeals, less one-half of the costs incurred in the Court of Civil Appeals. The tender was conditioned upon Hill executing a release and a deed to the partnership property as provided for in the judgment. Hill refused to execute either the release or the deed upon the ground that he was entitled to interest from the date of the judgment in the District Court rather than the date of the judgment in the Court of Civil Appeals, and also on the ground that he was not responsible for any of the costs in the Court of Civil Appeals. As a result of the dispute, Lewis instituted the present suit in the Court below seeking a determination on the following questions:

(1) Whether L. C. Hill, defendant in the present cause, is entitled to interest on the judgment previously rendered in Cause No . 46807, in the 72nd District Court, Lubbock County, Texas, as reformed by the Court of Civil Appeals in Cause No. 7659, from the date of the judgment rendered in the trial court on February 24, 1966, until the date of tender, January 24, 1967, or whether Hill was entitled to interest only from the date of the judgment of the Court of Civil Appeals on November 28, 1966, until the date of the tender on January 24, 1967, and

(2) Whether or not Hill was responsible for all court costs incurred in the Court of Civil Appeals in Cause No. 7659.

After a trial before the court, without a jury, the trial court found that Hill was entitled to interest on the amount of the District Court judgment, as reformed, commencing on the date of the judgment, February 24, 1966. The trial court also found that Hill was responsible for all court costs incurred in the appellate court as a result of the appeal in the previous suit. Judgment was accordingly entered, from which both parties duly perfected this appeal.

Upon this appeal, Lewis contends that the trial court erred in allowing Hill interest on the judgment as reformed from the date same was entered in the District Court for two reasons. First, he says, that the trial court in the former suit at the request of Hill, required Lewis to restore the sum of $56,241.28 to the partnership bank account and enjoined him from using or diminishing such account pending final judgment. Upon final judgment the trial court ordered Hill's recovery to be paid from such fund. Therefore, Lewis argues that it would be inequitable to allow Hill to recover interest on his share of the partnership fund which Lewis was prohibited from using during the pendency of the suit. We think the contention is without merit.

The judgment in the former case specifically provided that 'any and all relief not granted herein is specifically denied.' It must therefore be assumed that if such relief was requested, it...