Reynolds v. Steves

• Decision Date: 21 March 1962
• Docket Number: No. 13898,13898
• Citation: 356 S.W.2d 200
• Parties: Robert G. REYNOLDS, Appellant, v. Walter STEVES, Appellee.
• Court: Texas Court of Appeals

Page 200

356 S.W.2d 200

Robert G. REYNOLDS, Appellant, v. Walter STEVES, Appellee.

No. 13898.

Court of Civil Appeals of Texas, San Antonio.

March 21, 1962.

Rehearing Denied April 18, 1962.

Pat Maloney, San Antonio, for appellant.

Kampmann & Kampmann, William C. Church, Jr., Robert P. Thomas, III, San Antonio, for appellee.

MURRAY, Chief Justice.

Appellant's statement of the nature of this case is as follows:

'This is an appeal from an order of the trial Court granting a Summary Judgment to one of two defendants. The plaintiff based his action against Walter Steves, individually, and Ingram Equipment Company, a corporation, seeking a joint and several judgment for damages for fraud. The Defendant Steves filed a Motion For Summary Judgment, which was denied. Later, at a hearing on a second motion for Summary Judgment, another Court granted same. No order of severance was entered and, subsequent to a trial on the merits of Plaintiffs claim against Ingram Equipment Company, Appellant duly perfected this appeal.

'This appeal complains only of the error of the trial Court in granting the Summary Judgment of defendant Steves. No Appeal is made from the judgment entered in the Plaintiff's case against Defendant Ingram Equipment Company.'

Appellant's original brief contains but two points of error, presenting, generally, the contention that the trial court erred in granting Walter Steves' motion for a summary judgment and dismissing him from the cause.

The cause thereafter proceeded to trial against the other defendant, Ingram Equipment Company, a corporation. This trial was to a jury and resulted in judgment in favor of plaintiff against Ingram Equipment Company in the sam of $621.25. In the judgment, the trial court brought forward its interlocutory order dismissing Walter Steves from the suit, thus making the dismissal a final judgment, to which action the plaintiff, Robert G. Reynolds, excepted and gave notice of appeal. The overall judgment was signed by the trial court on April 28, 1961. On May 18, 1961, appellant filed his appeal bond containing the following recital:

'Whereas in the above entitled and numbered cause pending in the 45th Judicial District Court of Bexar County, Texas, and at a regular term of said Court, to-wit, on the 19th day of January, 1961, a summary judgment was rendered in favor of Walter Steves, a defendant in the above styled and numbered cause, wherein and whereby the plaintiff was denied recovery against said defendant, Walter Steves, and the said plaintiff desires to appeal from such order granting a summary judgment to defendant, Walter Steves, and to take an appeal from such order to the Court of Civil Appeals for the Fourth Supreme Judicial District Sitting in San Antonio, Texas; * * *.'

This appeal is only from that part of the judgment which granted a summary judgment to Walter Steves, and there is no appeal herein from that part of the judgment in favor of appellant against Ingram Equipment Company in the sum of $621.25. We will have more to say about this later.

Appellant's petition alleged a cause of action against Ingram Equipment Company, a corporation, and its president, Walter Steves, for a commission of $20,000,00 for making a sale to H. B. Zachry Company, of equipment amounting to about $2,000,000.00. The defendants below defended upon the theory that appellant signed an agreement to settle his claim for commission for the sum of $2,500.00. Appellant controverted the affidavit of Walter Steves by stating in his controverting affidavit that he signed the agreement after Walter...