National Auto. & Cas. Ins. Co. v. Webb

• Decision Date: 24 February 1955
• Docket Number: No. 3231,3231
• Citation: 276 S.W.2d 403
• Parties: NATIONAL AUTOMOBILE AND CASUALTY INSURANCE COMPANY, Appellant, v. Rufus WEBB et al., Appellees.
• Court: Texas Court of Appeals

Page 403

276 S.W.2d 403

NATIONAL AUTOMOBILE AND CASUALTY INSURANCE COMPANY, Appellant, v. Rufus WEBB et al., Appellees.

No. 3231.

Court of Civil Appeals of Texas, Waco.

Feb. 24, 1955.

Rehearing Denied March 24, 1955.

M. E. Clough, Dallas, for appellant.

O'Dowd & O'Dowd, Waco, for appellee.

TIREY, Justice.

This is an appeal from an order dismissing an application for permanent injunction. It does not yield to a simple statement.

On the 4th day of May, 1954, Rufus Webb recovered judgment on a compensation claim in the 19th District Court of McLennan County from the National Automobile and Casualty Insurance Company the sum of $2,834, and the court decreed that of this sum $719.40 shall be paid in a lump sum and the remainder thereof be paid at the rate of $21.80 per week for a period of 97 weeks, with 6% interest on each installment not paid at maturity, and for costs. The court further decreed that E. H. O'Dowd and M M. O'Dowd, attorneys for Rufus Webb, recover 1/3 or the amount and fixed a judgment lien to that extent on all sums recovered by the plaintiff, and provided that they should have their execution.

The Insurance Company seasonably filed its motion for new trial, which was overruled, and it gave notice of appeal. Pending the appeal the attorneys for Rufus Webb entered into a berbal agreement with the attorney for the Insurance Company whereby the attorneys agreed that if the Insurance Company would pay a lump sum of $1,850, it would be accepted in full settlement. The attorney for the Insurance Company relied on this verbal agreement and did not perfect its appeal to this court. Thereafter it ascertained that the plaintiff Rufus Webb would not accept the settlement agreed to by his attorneys and was threatening to cause execution to be issued on the judgment heretofore rendered. Thereafter the Insurance Company filed its original petition in the 19th District Court setting up the aforesaid facts, and among other things specifically alleged: 'That prior to said judgment becoming final defendant E. H. O'Dowd, acting for himself and the firm of O'Dowd & O'Dowd, and as attorneys of record for Rufus Webb, plaintiff in said judgment, and defendant herein verbally contracted, promised and agreed with the plaintiff herein, by and through M. E. Clough, its attorney of record, to settle, compromise and release said judgment heretofore pleaded in consideration of the payment to Rufus Webb and O'Dowd & O'Dowd, his attorneys of record, the sum of $1850.00 in one lump sum, which was accepted and agreed to by plaintiff herein.' Plaintiff further alleged in effect that before the judgment herein referred to became final and the time had not expired in which to perfect its appeal that it prepared and had delivered to O'Dowd & O'Dowd a release of the judgment to be signed by Rufus Webb and O'Dowd & O'Dowd, and that he contacted O'Dowd & O'Dowd with reference to this release and at that time it was assured by O'Dowd & O'Dowd that the suit and judgment had been settled as per the terms here pleaded and that the court had been informed by said attorneys that the cause and judgment had been settled. It further alleged that unless defendants are restrained and enjoined they will breach their contract and order the Clerk of the District Court to issue execution on said judgment, and that the Clerk will issue the same, and that the collection of the judgment in full will work an irreparable injury and injustice on plaintiff. Plaintiff further tendered into court the sum of $1,850 as an evidence of its good faith and on condition that when the said Rufus Webb and O'Dowd and O'Dowd executed the release of the judgment that the Clerk of the Court would be authorized to deliver and pay over the proceeds of said $1,850 to Rufus Webb and O'Dowd & O'Dowd. The Insurance Company prayed that defendants be temporarily restrained and enjoined pending the hearing and that upon final hearing that the injunction be made perpetual, and it prayed for general and special relief, and for costs. The court granted the temporary restraining order without a hearing. Thereafter O'Dowd & O'Dowd, in behalf of themselves and Rufus Webb, filed only a motion to dismiss, which motion set up substantially that the cause should be dismissed for the reason that Rule 11, Texas Rules of Civil Procedure, provides in effect that any character or kind of an agreement that is not made in writing and signed is not binding upon the court and that plaintiff knew that Rufus Webb could not settle or release his claim and judgment without the approval of the court and that the Insurance Company had at no time prior to the time required by law for it to perfect its appeal from the judgment rendered obtained the approval of the court for the settlement, and by reason thereof the court is without jurisdiction to prohibit execution on the judgment, and that the application for injunction should be dismissed for want of jurisdiction.

There is no statement of facts but in the order we find this recital: '* * * came on to be heard defendant's motion to dismiss for want of jurisdiction, * * * and the court having heard and considered the same, together with the pleadings and argument of counsel thereon, the court is of the opinion that said motion to dismiss is well taken and * * * is hereby in all things sustained.' The court then decreed accordingly and the Insurance Company perfected its appeal to this court.

Appellant assails the order on what he designates as two points: (1) the error of the court in holding that it did not have jurisdiction to hear and determine the cause; and (2) in sustaining appellees' motion to dismiss and in dismissing the cause for want of jurisdiction. Appellant admits its two points present but one.

This cause is unusual in that it does not fall within any particular pattern that we have seen. Rule 11, T.R.C.P., provides: 'No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with...