Royal Palms Corp. v. A. Minella Plumbing Supplies, Inc.

• Decision Date: 08 March 1962
• Docket Number: No. 13889,13889
• Citation: 355 S.W.2d 585
• Parties: ROYAL PALMS CORPORATION et al., Appellants, v. A. MINELLA PLUMBING SUPPLIES, INC. et al., Appellees.
• Court: Texas Court of Appeals

Page 585

355 S.W.2d 585

ROYAL PALMS CORPORATION et al., Appellants, v. A. MINELLA PLUMBING SUPPLIES, INC. et al., Appellees.

No. 13889.

Court of Civil Appeals of Texas, Houston.

March 8, 1962.

Roy H. Bray, Houston, for appellant Royal Palms Corporation.

Charles M. Leftwich, Houston, for appellant San Jacinto Title Company.

Funderburk, Murray & Ramsey, John Murray, Houston, for appellee A. Minella Plumbing Supplies, Inc.

Dow & Dow, Edmund L. Cogburn, Houston, for appellee Plumbing Supply Company.

COLEMAN, Justice.

This is an appeal from a judgment rendered by the court sitting without a jury in favor of certain materialmen against a subcontractor on a construction project, and the owner of the project, for the contract price of material furnished to the subcontractor. The judgment established mechanics' and materialmen's liens of the premises and decrees a foreclosure of the liens.

We are considering two suits which were consolidated by agreement. A. Minella Plumbing Supplies, Inc. sued Royal Palms Corporation, Truett Peachey, Big T. Building and Supply Company, Inc., Max I. Kamenzind an San Jacinto Title Company. Plumbing Supply Company sued Max Kamenzind, Royal Palms Corporation, Truett Peachey, Barbara Peachey and Peachey Realty Company, Inc. All defendants, except San Jacinto Title Company, answered by general denial. San Jacinto Title Company answered that it was a disinterested stakeholder of $8300.00; that A. Minella Plumbing Supplies, Inc., Royal Palms Corporation, Truett Peachey, Big T. Building and Supply Company, Inc. and Max I. Kamenzind were asserting claims to the fund; that it could not safely determine to whom the money was due and tendered same into court praying that the named claimants be cited to appear and answer and that the court determine the owners of the fund; order its distribution and discharge San Jacinto Title Company from any liability. No further pleadings with reference to the fund tendered into court appear in the record.

Poyal Palms Corporation and San Jacinto Title Company have appealed. San Jacinto Title Company complains that the judgment is too vague and indefinite to finally adjudicate the rights of all claimants to the fund which it tendered into court and, therefore, fails to give the company complete protection. The portion of the judgment concerned with the interpleader action reads as follows:

'* * * and it also appearing to the Court that the Sam Jacinto Title Company holding certain funds on behalf of the Defendant Royal Palms Corporation in the amount of $8,300.00 for the satisfaction of liens arising under the sub-contract with Peachey Construction Company and Big T. Building and Supply Company, Inc. aforementioned, has tendered such funds into the Registry of this Court, acting on behalf of the defendant Royal Palms Corporation and that accordingly such funds should be applied toward the satisfaction of costs of court incurred herein and of the liens of Plaintiff A. Minella Plumbing Supplies, Inc. and Plumbing Supply Company as liens arising under such sub-contract; it is therefore ORDERED, ADJUDGED AND DECREED that such funds as tendered into the Registry of this Court be and they are hereby applied in satisfaction of the Mechanic's and Materialmen's Liens set out and established and forecosed above and the San Jacinto Title Company is hereby ORDERED to pay said $8,300.00 into the Registry of this Court and the Clerk of this Court is hereby Ordered and Directed to pay the costs of court herein and then to pay to A. Minella Plumbing Supplies, Inc. the sum of $2,656.16 plus $195.01 interest with 6% interest on such sums from date hereof and to Plumbing Supply Company the sum of $1,034.72 plus $77.00 interest with 6% interest on such sums from date hereof and upon the payment of such sums to the said Plaintiffs in satisfaction of such liens as aforesaid such liens shall be in all things discharged as against the property hereinabove described and the balance then remaining to the Royal Palms Corporation herein determined to be entitled thereto, and upon the payment of said sum of $8,300.00 into the Registry of this Court by the San Jacinto Title Company, it will thereby be discharged of any and all further liability with respect to said sum from claims arising out of the subject matter thereof.

'It is further ORDERED, ADJUDGED AND DECREED that Plaintiffs A. Minella Plumbing Supplies, Inc. and Plumbing Supply Company shall recover nothing from Defendants Truett Peachey, Barbara Peachey, Big T. Building and Supply Company, Inc. and Peachey Realty Company, Inc. and that said Defendants shall go hence without day with their costs, said Defendants having been granted an instructed verdict on motion at the close of the Plaintiffs' cases.'

All parties named in the interpleader action, who answered in the principal suit, are properly before the court even though citations were not served in such action. Empire Gas & Fuel Co. v. Noble, Tex.Com.App., 36 S.W.2d 451; Sullivan v. Doyle, 108 Tex. 368, 194 S.W. 136. A judgment is not 'final', and appealable, unless it determines the rights of all parties and disposes of all issues involved so that no future action by the court will be necessary in order to settle and determine the entire controversy. Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890; Harris v. Superior Ins. Co., 322 S.W.2d 665, Tex.Civ.App. Unless the judgment from which this appeal is prosecuted disposed of all parties to, and issues raised by, the interpleader of San Jacinto Title Company, the judgment is not final and we have no jurisdiction of this appeal.

The quoted paragraph of the court's judgment wherein it was decreed that Truett Peachey, Barbara Peachey, Peachey Realty Co., Inc., and Big T. Building and Supply Co., Inc., go hence without day with their costs, specifically refers to the main case and does not purport to adjudicate their rights with reference to the fund tendered into court.

It is contended that there was no final or express adjudication of the rights of all claimants to the fund by reason of the addition of the phrase, '* * * from claims arising out of the subject matter thereof', to the previous words granting San Jacinto Title Company a discharge from possible liability growing out of conflicting claims to the fund. Added weight is given the point by reason of the trial court's conclusion of law that 'San Jacinto Title Company is entitled to be discharged upon its plea of interpleader as to all liability with respect to said sums paid into court as to Plaintiffs Plumbing Supply Company and A. Minella Plumbing Supplies, Inc.'

The trial court fund as a fact:

'That the sum of $8,300.00 was deposited by Defendant, Royal Palms Corporation, in escrow with Defendant, San Jacinto Title Company to be applied by the said San Jacinto Title Company for and on behalf of Royal Palms Corporation for the satisfaction of Mechanics' and Materialmen's Liens arising under the sub-contract between Big T. Building & Supply Company, Inc. and the original contractor, Peachey Construction Company, against the above described property and that said sum was paid into the Registry of this Court by Defendant, San Jacinto Title Company.'

Since this finding has not been attacked as being unsupported by evidence, it is binding on this Court. In view of this fact finding, the conclusion of law set out above would not negative a further implied conclusion that the title company is entitled to be discharged from all liability arising out of claims to the fund which were, or might have been, asserted by any party to the interpleader action. The trial court's findings of fact demonstrate that there were conflicting claimants for the fund, a reasonable doubt as to the proper person legally authorized...