Sanitary Appliance Co. v. French

• Decision Date: 22 February 1933
• Docket Number: No. 3953.,3953.
• Citation: 58 S.W.2d 159
• Parties: SANITARY APPLIANCE CO. et al. v. FRENCH.
• Court: Texas Court of Appeals

58 S.W.2d 159

SANITARY APPLIANCE CO. et al. v. FRENCH.

No. 3953.

Court of Civil Appeals of Texas. Amarillo.

February 22, 1933.

Rehearing Denied March 22, 1933.

Error from District Court, Lubbock County; Clark M. Mullican, Judge.

Suit by the Sanitary Appliance Company and another against W. A. French, wherein plaintiffs obtained a temporary writ of injunction against defendant, and executed an injunction bond payable to defendant, and wherein, after the temporary injunction was dissolved, defendant by cross-action obtained a judgment against plaintiffs, and their surety, the Equitable Casualty & Surety Company. To review the judgment, plaintiffs bring error.

Reversed and remanded.

J. M. Marshall, of Lubbock, and Barkley & Webb, of Houston, for plaintiffs in error.

Lockhart & Brown, of Lubbock, for defendant in error.

HALL, Chief Justice.

The Sanitary Appliance Company and Cullen G. Jackson, hereinafter designated as appellants, sued defendant in error, hereinafter designated appellee, and obtained a temporary injunction against French restraining him from performing certain acts during the pendency of the suit. As required by the court, they executed an injunction bond in the sum of $1,000, payable to French, with the Equitable Casualty & Surety Company as surety thereon. Thereafter the temporary injunction was dissolved and by cross-action French obtained a judgment against the Sanitary Appliance Company and Jackson as principals and the Equitable Casualty & Surety Company as surety, jointly and severally, in the sum of $500, with interest from date of the judgment.

From this judgment the Sanitary Appliance Company and Jackson have prosecuted a writ of error without making the Equitable Casualty & Surety Company a party to the proceedings.

French has filed his motion to have the writ of of error proceedings dismissed for want of jurisdiction on account of the failure of the Sanitary Appliance Company and Jackson to make the Casualty & Surety Company a party thereto.

R. S. art. 2257, provides that a petition for writ of error shall state the names and residences of the parties "adversely interested," shall describe the judgment, etc.

Article 2263 provides: "If it appears from the allegations in the papers of the cause that the party is a non-resident of the State, or if it appears from the return of the sheriff or constable that the party cannot be found in the county of his residence, the citation shall direct the officer to summon the defendant by making service on his attorney of record, if there be one."

In Buttrill et al. v. Occidental Life Ins. Co. (Tex. Civ. App.) 31 S.W.(2d) 833, it appears that the citation in error failed to state the names of all defendants. Judge Looney said: "Plaintiff in error was not required to do other than allege `the names and residences of the parties adversely interested' * * * and this requirement was complied with. The statute (article 2260) requires that the citation in error state `the names of the parties' given in the petition but it is evident that provision refers only to parties whose names are required to be mentioned in the petition; that is, those `adversely interested.'"

The record shows that, when French filed his cross-action, the Equitable Casualty & Surety Company failed to appear and answer in the court below, and judgment was rendered against it by default, which could be done by express provision of R. S. art. 4649, without the service of citation on the company. Garrett v. Kelley (Tex. Civ. App.) 6 S.W.(2d) 414. The surety company filed no answer and no cross-action against the principals on the indemnity bond to recover over against them whatever amount French might recover against it. Neither has it appealed, but apparently is satisfied with the judgment as rendered below. So upon the face of the record its interest is not adverse to that of plaintiffs in error. The company is a nonresident of this state, and had no attorney representing it in the court below, so no service could be made under article 2263, which provides that, in case of a nonresident defendant, the citation shall be upon its attorney.

It is held that the sureties on a cost bond are not adversely interested to the principal on the bond. Taylor v. Gardner (Tex. Civ. App.) 99 S. W. 411. See Blackman v. Harry (Tex. Civ. App.) 35 S. W. 290.

The surety company, having failed to appear or answer in the trial court, or to prosecute an appeal, has no standing in this court. Wanderlohr v. Grayson County National Bank (Tex. Civ. App.) 102 S. W. 746.

"An adverse party within the meaning of the rule is any party whose interest in the subject-matter of the appeal is adverse to that of appellant or may be affected by a modification or reversal of the judgment or order appealed from." 3 C. J. 1218.

Certain documentary evidence has been filed with the record here, consisting of an order made by the Supreme Court of New York, which is the domicile of the Casualty & Surety Company, dated December 31, 1930, ordering the insurance commissioner of that state to take over the affairs of said company, and, by the terms of the order, the charter of the company is forfeited and the corporation dissolved. It is further ordered that all claims against the company be submitted before January 15, 1931. There is further a duly authenticated order issued out of the same court on February 7, 1933, which certifies to the correctness of the first order. Amongst the documentary evidence filed, we find a statement from the chairman of the board of insurance commissioners of the state of Texas with a copy of the order of the insurance commissioner of New York, from which it appears that the company had been dissolved in that state and that all of its liabilities ceased on the 15th day of January, 1931. But it is not shown that under the laws of the state of New York the company is defunct, so R. S. art. 1390, of Texas, must control, and it provides that dissolution of a corporation does not abate a suit pending against it.

We overrule the appellee's motion to dismiss the writ of error proceedings.

Appellee also moves to strike the appellants' brief because the propositions are mere abstract statements of rules of law, and do not point out any error which has been committed by the court or any one else.

With one exception we find that the propositions are subject to the objection, but, in amending article 1757 prescribing the requisites of a brief, the Forty-Second Legislature, chapter 45 (Vernon's Ann. Civ. St. art. 1757), made no reference whatever to propositions. Because the brief contains assignments of error which sufficiently specify the errors complained of and also contains a "statement and/or argument on the errors assigned," we will consider the assignments of error and treat the propositions as surplusage. Standard et al. v. Texas Pacific Coal & Oil Co. (Tex. Civ. App.) 47 S.W.(2d) 443.

We therefore overrule the appellee's motion to strike the briefs.

The Sanitary Appliance Company, Inc., one of the appellants, entered into a contract with its coappellant Cullen G. Jackson, by the terms of which Jackson was appointed as a general agent for the exclusive sale in certain counties mentioned in the contract of the Sanitary Appliance Company's products. The contract contains, amongst others, the two following stipulations which are material in the consideration of this case:

"8. It is understood that this agreement shall remain in full force and effect until either party hereto shall have given to the other party hereto at least thirty days prior written notice of its intention to terminate this agreement.

"9. Inasmuch as it will be necessary for the manufacturer to furnish the general agent with confidential information concerning its appliances and business, it is agreed that if either party takes advantage of the thirty days notice to discontinue this agreement, that the general agent will not sell any sewerage disposal equipment of any other manufacturer in the above named territory for a period of at least one year subsequent to the termination of this agreement. Also during the life of this agreement it is understood that the general agent will not sell any sewerage disposal equipment other than that of the manufacturer."

Thereafter Jackson entered into a contract with French as subagent, which contains, amongst others, the following provisions:

"Whereas, the said Cullen G. Jackson desires to employ the said W. A. French as a sales representative of the manufacturer subject to the terms, restrictions and conditions of said general agent's contract with the manufacturer and further subject to the following terms and conditions: * * *

"8. It is understood by all parties hereto and the manufacturer in accepting the instructions and agreements contained in this contract shall accept same with the understanding that this contract shall in no way alter or change the terms of the contract between the manufacturer and the general agent except to the extent of authorizing the manufacturer to pay one-half of the net cash commissions on sales made by the said W. A. French to him and one-half to Cullen G. Jackson.

"9. It is understood that this agreement shall remain in full force and effect until either party hereto shall have given to the other party hereto at least thirty days prior written notice of its intention to terminate this agreement. This agreement, however, shall be immediately terminated upon termination of the general agent's sales contract with the manufacturer."

In their original petition, the appellants, in addition to seeking the injunctive relief, sued appellee to recover $600 which they alleged was the value of certain printed matter, equipment, etc., which they had furnished to him while he was employed by them as salesman, and which he had failed to return upon leaving their employment.

French answered, and by way of cross-action sued the appellants to recover...