McClain v. Hickey

• Decision Date: 27 June 1967
• Docket Number: No. 7825,7825
• Citation: 418 S.W.2d 588
• Parties: Hollie G. McCLAIN and Belle Fulton, Appellants, v. Curtis HICKEY et al., Appellees. . Texarkana
• Court: Texas Court of Appeals

Page 588

418 S.W.2d 588

Hollie G. McCLAIN and Belle Fulton, Appellants, v. Curtis HICKEY et al., Appellees.

No. 7825.

Court of Civil Appeals of Texas Texarkana.

June 27, 1967.

On Motion for Rehearing July 25, 1967.

Second Rehearing Denied Aug. 29, 1967.

Hollie G. McClain, Gilmer, W. D. Hancock, Pittsburg, for appellants.

Fred Whitaker, Bankhead & Davis, Carthage, Wardlow Lane, Center, Kilgore & Kilgore, Dallas, Billy Hunt: Fairchild & Hunt, Center, Joe Jackson, Carthage, Earl Sharp, Longview, for appellees.

CHADICK, Chief Justice.

The several parties to this appeal and their legal counsel appeared for the trial of the merits of this case in the district court. Preliminary to the introduction of evidence, at the court's suggestion, attorneys for the parties entered into settlement negotiations. Reports on the progress of negotiations were made from time to time to the trial judge. Trial of the action was concluded when the trial judge withdrew the case from the jury docket and signed and entered a draft of judgment presented to him by counsel for the parties other than the appellants, Fulton and McClain. The judgment signed and entered by the trial judge contained among its recitals the following, to-wit:

'* * * and came all parties by and through their respective attorneys of record, and announced to the Court that all matters in controversy herein have been, by the parties, compromised and settled; Whereupon, all parties moved the Court by joint motion, to remove this cause from the jury docket, and enter judgment in this cause in accordance with the agreement of the parties, and the Court having considered such motion, and being of the opinion that said motion should be in all things granted, this cause was removed from the jury docket and judgment is here now entered in accordance with the terms of such agreement of the parties * * *.'

The statement of facts shows that neither appellants Fulton and McClain, nor their counsel, were present when the draft of the proposed judgment was submitted to the trial judge, and that neither of such parties nor counsel for either of them joined in the announcement and motion mentioned in the recital quoted and that no settlement agreement entered into by appellants Fulton and McClain, or their attorneys, with the other parties to the litigation, or their attorneys, was reduced to writing, signed by any party or party's attorney, and filed as a part of the record; nor was such an agreement made in open court and entered of record. However, it is urged in support of the trial court judgment that the draft of the judgment presented to the trial judge and subsequently signed by him, though neither Fulton nor McClain, nor their counsel signed or otherwise noted approval thereof, was a substantial compliance with Tex.R.Civ.P. 11.*

In giving effect to the purpose of this rule of procedure the conclusion is obvious that the rule is intended to require the content of an agreement made by parties or attorneys in the course of a judicial proceeding to be preserved by a written memorial signed by those entering into the agreement. The purpose of the rule as stated in Wyss v. Bookman, 235 S.W. 567 (Tex.Com.App.1921), and reaffirmed in Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871 (Tex.Com.App.1939, opinion adopted), is to remove from the 'fallibility of human recollection' agreements made by 'counsel in the course of the judicial proceeding which affect the interests of their clients'. The rule requires a written and signed memorial of the agreement. This necessarily means that the assent to and details of the agreement be shown by the memorial; otherwise the assent to and content of the agreement might be preserved only in the memory of the persons making it. The purpose of the rule would not be achieved unless a party or a party's attorney signed the agreement. The purpose of the rule coupled with the common understanding that a trial judge is not a party to or an attorney in a case on trial before him, eviserates the argument that the judge's signature on the judgment under review gives the instrument the character of a written and signed agreement made in substantial compliance with Rule 11.

A consent judgment is treated as a contract between the parties to it. Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951). The judgment entered in this case divested title out of certain parties, (Fulton and McClain not among them) and awarded title and possession of the tract in controversy to Curtis Hickey, R. H. Lee, Lawrence L. McCrary and Fred Whitaker. One of the counts of the cross action that brought Fulton and McClain into the litigation sought relief by way of an accounting, and as a result of the accounting phase of the case the proceeds of mineral production antecedent to the date of trial were awarded and distributed to named parties in satisfaction of adjudications of recovery particularized in the instrument. No portion of the proceeds derived from prior production was allocated to Fulton and McClain as their share or property, although a part, $59,000.00, of such proceeds was ordered paid to other parties to satisfy a recovery of that sum adjudged against Fulton and McClain. In a separate and different action from this on appeal, but in the same court an undivided mineral interest in the tract from which the mentioned minerals were produced is the subject of a trespass to try title suit between R. H. Lee, Curtis Hickey and Fred Whitaker, as plaintiffs, and Fulton and McClain, as defendants. This separate action was pending in the trial court at the time the judgment under review was entered. The judgment under review, considered as a contract between the parties to it, would constitute an agreement by Fulton and McClain to the allocation and distribution of the proceeds of prior production from the land and such agreement would bar recovery by Fulton and McClain of an interest in the value of the prior mineral production if they successfully defend their titles in the pending trespass to try title suit. The record reveals this state of affairs, and therein shows that affirmance of the judgment under review would be harmful and prejudicial to the rights of Fulton and McClain.

On motion for new trial the trial court was advised by Fulton and McClain that they concurred in and did not question or challenge a stipulation and tender made by San Jacinto Gas Processing Corporation. The judgment of the trial court will be affirmed as to San Jacinto Gas Processing Corporation, and in all other respects judgment is reversed and the cause is remanded for new trial. Costs will be taxed one-fifth to Fulton and McClain, and four-fifths to the other parties, except San Jacinto Gas Processing Corporation, which shall recover all its costs.

ON MOTION FOR REHEARING

The judgment underlying this appeal adjudicates title to land, confirms on accounting made by certain of the parties and validates a gas purchase contract, settles a receivership...