Perry v. Leuttich

• Court: Texas Supreme Court
• Writing for the Court: German
• Citation: Perry v. Leuttich, 121 S.W.2d 332, 132 Tex. 159 (Tex. 1938)
• Decision Date: 23 November 1938
• Docket Number: No. 2181-7138.,2181-7138.
• Parties: PERRY et al. v. LEUTTICH.

121 S.W.2d 332

PERRY et al. v. LEUTTICH.

No. 2181-7138.

Commission of Appeals of Texas, Section A.

November 23, 1938.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Mary Perry and her husband against Al Leuttich for forcible detainer of land, originally instituted in justice court. Judgment for defendant was affirmed by county court and by Court of Civil Appeals, 93 S.W.2d 790, and plaintiff brings error.

Judgment of Court of Civil Appeals and judgment of county court reversed in part and rendered for plaintiff.

C. W. Croom, of El Paso, for plaintiffs in error.

David J. Smith, of El Paso, for defendant in error.

GERMAN, Commissioner.

This suit involves the construction of Article 3990 of the Revised Statutes of 1925, as amended by Acts of 1927, 40th Legislature, Chapter 51, Section 1, Vernon's Ann. Civ.St. art. 3990. The writ of error was granted upon the construction of that article.

The question involved arose in this way: Plaintiff in error, Mary Perry, is owner of certain real estate in El Paso County. On July 1, 1933, she made a verbal lease to defendant in error, Al Leuttich, of a store building and oil station situated upon said real estate, for a monthly rental of $25, which lease was to continue for one year. After the expiration of one year, defendant in error held over and refused to surrender possession on demand. Mrs. Perry, joined by her husband, on September 25, 1934, filed a suit of forcible detainer in the Justice Court of Precinct No. 1 of El Paso County. Plaintiffs in error did not seek to gain possession of the property by filing bond, as provided by Article 3987 of the Revised Statutes. In the justice court judgment was rendered in favor of defendant in error and he remained in possession. Plaintiffs in error appealed to the county court, as provided by Article 3987. The cause was tried in the county court before a jury, and the jury returned answers to special issues which appear to us to be favorable to plaintiffs in error. Notwithstanding such findings, the county court rendered judgment in favor of defendant in error, declaring that he was entitled to retain possession of the store building and oil station in controversy. In addition, the court rendered judgment in favor of defendant in error for the sum of $200 as expenses for defending the suit in the county court, which consisted largely of attorney's fees. This judgment was affirmed by the Court of Civil Appeals. 93 S.W.2d 790.

Article 3990, as amended, Vernon's Ann. Civ.St. art. 3990 is as follows: "On the trial of the cause in the county court the appellee shall be permitted to prove the damages for withholding the possession of the premises from the appellee during the pendency of the appeal and the reasonable expenses of the appellee in prosecuting or defending the cause in the county court; and, if the possession of the premises be not adjudged to the appellant said court shall render judgment also in favor of the appellee and against said appellant and the sureties on his bond for the damages proven and all costs."

It is the contention of defendant in error, which contention was upheld by the Court of Civil Appeals, that under this article an appellee, though never dispossessed of the premises, and though not entitled to damages, may nevertheless recover his "reasonable expenses in defending the cause in the county court," including attorney's fees. With this we cannot agree. The language of the article, when viewed in the light of the entire chapter of which it is a part, is of very uncertain meaning. This is illustrated by the fact that in the Codification of 1925, the article was made to read that the "appellant" shall be entitled to prove the damages, etc., and the amendment of 1927 changed the word "appellant" to "appellee." Furthermore, we are struck with the idea that there would...