Saner-Ragley Lumber Co. v. Spivey

• Decision Date: 30 June 1923
• Docket Number: (No. 634.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 255 S.W. 193
• Parties: SANER-RAGLEY LUMBER CO. et al. v. SPIVEY et al.
• Court: Texas Court of Appeals

Page 193

255 S.W. 193

SANER-RAGLEY LUMBER CO. et al. v. SPIVEY et al.

(No. 634.)^*

Court of Civil Appeals of Texas. Beaumont.

June 30, 1923.

Rehearing Denied October 10, 1923.

Error from District Court, Polk County; J. L. Manry, Judge.

Action by J. H. Spivey against the Saner-Ragley Lumber Company and another, in which on the death of plaintiff, his heirs were substituted plaintiffs. Judgment was rendered for plaintiffs, and defendants applied to the Court of Civil Appeals for writ of error, which court dismissed the application (230 S. W. 878), and defendants brought error to the Supreme Court, which reversed the judgment of the Court of Civil Appeals, and remanded the cause to that court for disposition (238 S. W. 912). Judgment of trial court reversed, and cause remanded.

Dean & Humphrey, of Huntsville, P. R. Rowe, of Livingston, and Chas. L. Black, of Austin, for plaintiffs in error.

O. S. Parker and Smith & Crawford, all of Beaumont, and S. H. German, of Austin, for defendants in error.

HIGHTOWER, C. J.

This was a suit originally filed by J. H. Spivey, as plaintiff, against Saner-Ragley Lumber Company, a private corporation, and W. G. Ragley, as defendants, in the district court of Jefferson county in which the plaintiff sought to recover damages against defendants in the sum of $75,000, alleged to have been sustained in consequence of a breach of contract entered into between the parties, by the terms of which the plaintiff was to be permitted, for a certain consideration stated, to cup for turpentine a tract of pine timber owned by defendant Saner-Ragley Lumber Company in Polk county, Tex., covering some 10,700 acres of land. Defendants were duly served with citation in the case, and in due time appeared and filed their plea of privilege, claiming their domicile in Polk county, Tex., and prayed that the venue be changed to the district court of that county. The plea of privilege was heard and sustained by the district court of Jefferson county, and an order made changing the venue of the suit to Polk county, and directing the clerk to make up the proper transcript and forward the same, together with the original papers in the cause, to the clerk of the district court of Polk county, which was done, and the cause was duly filed in the district court of Polk county. After the order changing the venue to Polk county was entered, but before the transcript was made up and forwarded to Polk county, the plaintiff J. H. Spivey died, but the cause, nevertheless, was placed on the docket of the district court of Polk county in the name of J. H. Spivey as plaintiff, and the Saner-Ragley Lumber Company and W. G. Ragley as defendants.

At the first term of the district court of Polk county, after the cause had been filed in that court, the death of the plaintiff J. H Spivey was duly suggested to the court, and a motion was filed by J. H. Spivey's heirs, praying that they be permitted to prosecute the suit as plaintiffs, and this motion was granted, and Spivey's heirs were substituted for the original plaintiff, J. H. Spivey, and, as such substituted plaintiffs, they prosecuted this cause to judgment.

The defendants, Saner-Ragley Lumber Company and W. G. Ragley, never at any time or place filed any further answer, pleading, or motion in this cause than their said plea of privilege, and never at any time further appeared in the case, and no notice was given them or either of them that Spivey's heirs had been substituted as plaintiffs in the case, other than such notice as they were bound to take, if any, as a matter of law.

At the December term, 1920, of the district court of Polk county, the case was called for trial on its merits, and neither of the defendants appearing, and there being no answer on file by either of them to the merits of the cause of action, the case proceeded to trial before the court without a jury, and judgment was rendered in favor of the substituted plaintiffs as the heirs of J. H. Spivey, for $75,000, the full amount sued for, one-half of which was apportioned to the attorneys for the plaintiffs.

After the court had adjourned for the term and after the judgment against them had become final, the plaintiffs at once caused an execution to issue upon the judgment in their favor, which was placed in the hands of the sheriff of Polk county, and he called upon defendants to point out property to be levied on in satisfaction of the execution, and this was the first notice that defendants had that the cause had gone to trial and judgment rendered against them.

On being notified of the judgment against them, defendants sued out a writ of error to this court, by which they sought to bring the judgment here for revision, and, after the record had been filed in this court, a motion was filed by counsel for plaintiffs, praying this court to dismiss the writ of error for want of jurisdiction. It was asserted by counsel for the motion that this court had no jurisdiction to entertain the writ, because the petition for the writ and also the bond were so defective in vital respects as to confer no jurisdiction upon this court. The motion to dismiss was ably briefed by counsel for the plaintiffs, and was answered and fully and ably briefed by defendants and this court, in view of the nice legal questions involved and the large amount of the judgment, set the motion down for hearing, and invited oral argument upon it, which was had, and, after due consideration, this court sustained the motion, and dismissed the writ of error. The opinion of this court in that connection will be found reported in 230 S. W. 878.

Plaintiffs in error thereupon applied to the Supreme Court for writ of error, challenging our action on the motion, and the Supreme Court granted the writ, and thereafter rendered its judgment reversing our judgment on the motion, and remanded the cause back to this court for disposition on the merits. 238 S. W. 912. We shall refer throughout this opinion to plaintiffs in error as appellants, and to defendants in error as appellees.

Appellants' brief presents numerous assignments of error, for which they claim the judgment should be reversed, but we shall not refer to all of them specifically, nor in their numerical order, because to do so would carry this opinion to an unreasonable length, without any necessity therefor.

In view of the nature of some of the assignments of error, it is proper, and perhaps necessary, to let this opinion reflect the petition of appellees in full, and we, therefore, at this point copy it. After the marginal portion, the petition is as follows:

"Comes now J. H. Spivey, plaintiff herein, and complaining of Saner-Ragley Lumber Company, a Texas corporation, with its domicile and principal office at Carmona, Polk county, Tex., hereinafter for convenience called the company, and of W. G. Ragley, whose residence is to plaintiff unknown, but who is temporarily to be found in Polk county, Tex., respectfully shows:

"(1) That on and immediately prior to November 28, 1914, the said company, acting through the defendant, W. G. Ragley, who was at that time and now is treasurer and general manager of said company and its managing director, negotiated with this plaintiff, J. H. Spivey, a resident of Jefferson county, Tex., who was then engaged in the turpentining operations at and in the vicinity of Voth in Jefferson county, Tex., with a view to his removing his plant and equipment to the property owned and controlled by the defendant company in Polk county, Tex., represented by the defendants to aggregate approximately ten thousand seven hundred (10,700) acres of virgin, long-leaf yellow pine, and continue operating his turpentine business upon said timber last mentioned under arrangement which would produce a substantial revenue to the said defendant company and to the defendant, W. G. Ragley, the principal stockholder, managing director, who was, at that time, and still is, the treasurer and general manager of said company, such negotiations culminating in a contract being duly executed in Jefferson county Tex., on, to wit, November 29, 1914, by and between this plaintiff and the defendant company, acting by and through the defendant, W. G. Ragley, aforesaid, same being in words and figures substantially as follows, to wit:

"`Agreement entered between the Saner-Ragley Lumber Company of Carmona, Tex., and J. H. Spivey of Voth, Tex., the Saner-Ragley Lumber Company, party of the first part, enters into an agreement with J. H. Spivey, party of the second part; J. H. Spivey, party of the second part agrees to pay the Saner-Ragley Lumber Company party of the first part, six cents (6¢) per cup per year for the first year. J. H. Spivey agrees to put in from 50,000 to 75,000 cups the first year or the coming season of 1915. J. H. Spivey agrees to pay on the 20th day of January, 1915, 3 cents per cup in cash, the remaining 3 cents 60 days from date of first payment. The Saner-Ragley Lumber Company does not agree to have the timber cupped over two years or a two years lease, unless otherwise agreed to. At the end of the season the Saner-Ragley Lumber Company has a right to take over timber that has been turpentined at the end of season, and replace with other timber that is owned by the Saner-Ragley Company. J. H. Spivey agrees to leave 40 per cent. of the tree left alive between the cups as an average. The lumber company agrees to sell all parties that are working for Mr. Spivey all goods that are in the company's store at the same prices as they do their own men. Mr. Spivey agrees to settle for all bills at the first of each month less 10 per cent. The additional timber to be turpentined each season will be on the same basis as set out above, the amount for each season will be fixed later. This covers the entire tract of timber owned by the Saner-Ragley Lumber Company. J. H. Spivey agrees not to put in a store to handle goods. Saner-Ragley Lumber Co., per W. G. Ragley, Pa...