Rausheck v. Empire Life Insurance Co. of Amer.

• Decision Date: 26 February 1974
• Docket Number: No. 8199,8199
• Citation: 507 S.W.2d 337
• Parties: T. D. RAUSHECK et ux., Appellants, v. EMPIRE LIFE INSURANCE COMPANY OF AMERICA, Appellee.
• Court: Texas Court of Appeals

Page 337

507 S.W.2d 337

T. D. RAUSHECK et ux., Appellants, v. EMPIRE LIFE INSURANCE COMPANY OF AMERICA, Appellee.

No. 8199.

Court of Civil Appeals of Texas Texarkana.

Feb. 26, 1974.

Rehearing Denied March 26, 1974.

Merritt H. Gibson, Longview, for appellants.

Ebb B. Mobley, Smead, Roberts, Harbour, Smith, Harris & French, Longview, for appellee.

CHADICK, Chief Justice.

The appellants, T. D. Rausheck and wife, Cora Maye Rausheck, state the nature of the case and their points of error in this excerpt from their brief, viz:

'This is a summary judgment proceeding. The litigation was initiated by appellants, as plaintiffs, filing suit to restrain a trustee's sale scheduled to be held the first Tuesday in May, 1969, or May 6, 1969. That sale was enjoined. Plaintiff's subsequent pleadings attacked a trustee's deed resulting from a purported sale alleged to have been held the first Tuesday in June, 1969, or June 3, 1969. Appellee, Empire Life Insurance Company of America, filed a cross-action, seeking title and possession of the subject property, and recovery of the rental value of such property. Empire's alleged miniment of title was the trustee's deed dated the 3rd day of June, 1969. After the cross action was filed, appellants attempted to dismiss their cause of action, but no action was taken by the trial court. Appellants had benefit of counsel in securing a temporary restraining order enjoining the first trustee's sale, but were not represented by counsel in other phases of the case until after judgment. The trial court granted a summary judgment in favor of appellee. Subsequently, appellants, through counsel, requested and were granted leave to take a non-suit.

'Appellants predicate their appeal on the following points:

POINT ONE

'The Court erred in granting a summary judgment because there was an issue of fact as to the reasonable rental value of the subject property.

POINT TWO

'The Court erred in granting a summary judgment because there were issues of fact as to whether the notice of trustee's sale were posted for the time required by the deed of trust and by Article 3810, Vernon's Texas Civil Statutes, and as to whether the sale was held at the time and place required by said deed of trust and by such statute.

POINT THREE

'The Court erred in granting summary judgment that any document describing the subject property filed or caused to be filed by appellants, their agents, employees or entity constituting the alter ego of either of them after June 3, 1973, be cancelled, because such judgment is void for uncertainty.'

The written judgment instrument is seven pages in length, with less than two pages devoted to a description of the land in suit. It commences with recitals pertaining to parties, pleadings, appearances, etc., and proceeds to grant a motion for summary judgment filed 'in behalf of Empire Life Insurance Company of America, John G. Bookout, Commissioner of Insurance of the State of Alabama, and Receiver of Empire Life, and Tom. I. McFarling, Liquidator of the State Board of Insurance of Texas, Ancillary, Receiver of Empire Life * * *.' Immediately following the summary judgment provision the instrument contains court findings in twenty numbered paragraphs. Two of such paragraphs and the decretal portion of the instrument that follows such findings are pertinent to disposition of the first point of error; these are:

'* * * 14. The reasonable rental value of the subject property during the period June 3, 1969 to September 3, 1971, was the sum of $750.00 per month;

'15. Empire Life should have and recover the sum of $20,250.00 from the Plaintiffs and Cross-Defendants as rental for the period June 3, 1969 to September 3, 1974

'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the Defendant and Cross-Plaintiff Empire Life do have and recover of and from the Plaintiffs and Corss-Defendants title to and possession of the subject property; and

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Clerk of this Court issue in behalf of Empire Life a Writ of Possession to the subject property; and;

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED that any document covering and describing the subject property or any part thereof and filed or caused to be filed on or after June 3, 1969 by T. D. Rausheck and Cora Maye Rausheck, or either of them, or any agent, servant, employee, entity constituting the alter ego of either of them, be and it hereby is cancelled and held for nought.'

The parties to the lawsuit apparently overlooked the state of the record reflected by the above quoted portions thereof; nevertheless notice must be taken and the conclusion is inescapable that the trial court did not award the appellee a recovery of a money judgment for rent. The trial judge's finding of law and fact are mere recitals and though incorporated in the judgment instrument, such findings are not an award of relief by way of judgment for recovery of money. It is said in 49 C.J.S. Judgments § 71, that:

'The judgment or decree does not reside in its recitals, but in the mandatory or decretal portion thereof, which adjudicates and determines the issues in the case and defines and settles the rights and interests of the parties as far as they relate to the subject matter of the controversy. * * * The validity of the judgment is not affected by...