Peerless Oil & Gas Co. v. Teas

• Decision Date: 07 January 1942
• Docket Number: No. 7744.,7744.
• Citation: Peerless Oil & Gas Co. v. Teas, 158 S.W.2d 758, 138 Tex. 301 (Tex. 1942)
• Parties: PEERLESS OIL & GAS CO. v. TEAS.
• Court: Texas Supreme Court

Page 758

158 S.W.2d 758

PEERLESS OIL & GAS CO. v. TEAS.

No. 7744.

Supreme Court of Texas.

January 7, 1942.

Rehearing Denied February 18, 1942.

Error from Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Paul C. Teas against the Peerless Oil & Gas Company to recover damages for wrongful procurement, issuance and service of two writs of garnishment based on a judgment for defendant against plaintiff. A judgment for plaintiff was affirmed by the Court of Civil Appeals, 138 S.W.2d 637, and defendant brings error.

Affirmed.

Swearingen & Miller, Eskridge & Groce, and Walter Groce, all of San Antonio, for plaintiff in error.

J. B. Lewright, of San Antonio, and Fagan Dickson, of Austin, for defendant in error.

CRITZ, Justice.

On November 18, 1936, Paul C. Teas recovered a judgment in the District Court of Bexar County, Texas, against the Floboots Corporation and Plateau Oil Company for $36,085. As a part of this judgment Peerless Oil & Gas Company, hereinafter called Peerless, was awarded a judgment against Teas for the sum of $9,403.40. It appears that the sum of $35,000 was on deposit in the National Bank of Commerce in San Antonio. This bank was a party to the suit. Such judgment contained an express provision that "no execution shall issue hereon until Peerless Oil & Gas Company has first applied for and sought payment of the sum awarded to it from National Bank of Commerce, as above provided, and payment thereof has been refused by said bank, * * *."

Floboots Corporation and Plateau Oil Company appealed from the above judgment, and in an attempt to perfect such appeal filed a supersedeas bond in the sum of $72,500. This bond was signed by Peerless and its president, Vernon F. Taylor, as sureties. Teas filed a motion in the Court of Civil Appeals, in the appeal just indicated, to quash the above-mentioned supersedeas bond. On hearing in that court the bond was quashed, and appellants allowed ten days in which to file a new bond. Teas v. Swearingen et al., Tex.Civ.App., 101 S. W.2d 334. After the new bond was filed the Court of Civil Appeals affirmed the judgment of the district court. Floboots Corporation et al. v. Teas, Tex.Civ.App., 110 S.W.2d 180. This Court dismissed application for writ of error from the judgment last mentioned.

On December 8, 1936, Peerless without making any effort to collect its judgment against Teas from National Bank of Commerce, as required by the very judgment itself, caused to be issued out of the district court two writs of garnishment based on such judgment, one against Gulf Oil Corporation and one against Shell Petroleum Corporation. On final hearing in the district court in the above garnishment proceedings the two writs of garnishment were quashed on several grounds, one of which was that no sufficient showing was made to authorize the garnishment first above mentioned. The judgment just mentioned was affirmed by the Court of Civil Appeals. Peerless Oil & Gas Co. v. Gulf Oil Corp., Tex.Civ.App., 112 S.W.2d 1083.

After the happening of the above events Teas filed this suit in the District Court of Bexar County against Peerless, to recover damages, actual and exemplary, alleged to have been suffered by him as a result of the wrongful and unlawful procurement, issuance, and service of the above-described two writs of garnishment. Teas also sought exemplary damages, alleging malice on the part of Peerless. This is the suit at bar. Trial of this case was had in the district court with the aid of a jury. The case was submitted on special issues. The verdict found actual damages in the sum of $3,700 and exemplary damages in the sum of $35,000. The district court required Teas to file a remittitur in the sum of $25,000 as to the exemplary damages, and entered final judgment for Teas for $3,700 actual and $10,000 exemplary damages. On appeal by Peerless, this judgment was affirmed by the Court of Civil Appeals at San Antonio. Peerless Oil & Gas Co. v. Teas, Tex.Civ.App., 138 S. W.2d 637. At this point we pause to say that we here refer to the several opinions of the Court of Civil Appeals already mentioned for more detailed statement of the facts and issues of this case. The case is before this Court on writ of error granted on application of Peerless.

By proper assignment Peerless contends that the Court of Civil Appeals erred in holding that the trial court did not err in permitting Teas to introduce, over its objection, certain evidence tending to show that it and its president, Vernon F. Taylor, were each worth in excess of $75,000. As already shown, Floboots Corporation and Plateau Oil Company appealed from the judgment against them, above described. Also, as already shown, Peerless and Vernon F. Taylor signed, as sureties, the supersedeas bond for the companies named in such appeal. This bond was introduced in evidence without objection. At the time such bond was filed there was filed...