Simon v. L. D. Brinkman & Company

Decision Date07 October 1970
Docket NumberNo. B--2011,B--2011
Citation459 S.W.2d 190
PartiesJim SIMON et al., Petitioners, v. L. D. BRINKMAN & COMPANY, Respondent.
CourtTexas Supreme Court

Harvey L. Davis, Dallas, for petitioners.

Shank, Irwin, Conant & Williamson, Ray B. Williamson, Dallas, for respondent.


The narrow procedural question before us is whether there exists the bond, or its equivalent, necessary to give the Court of Civil Appeals jurisdiction of a writ of error. Following a judgment Nihil dicit, the losers in the trial court made a substantial cash deposit with the clerk in lieu of an appeal and supersedeas bond. The complicated facts will be developed below; but in general, the losing parties, after having taken an Appeal, elected to proceed in the Court of Civil Appeals by Writ of error, and to dismiss the appeal. No new cash deposit was made. The district clerk made a second certificate that a cash deposit had been made, and he has certified that the cash was still on hand and was sufficient for both the appeal and the writ of error; but there was not a second or separate deposit to cover the writ of error proceedings.

The Court of Civil Appeals at first took jurisdiction of the writ of error, reversed the judgment of the trial court, and remanded the case for a new trial. 449 S.W.2d 90. Upon rehearing, it determined that it had no jurisdiction of the writ of error because of a lack of a bond or deposit in lieu of a bond for the writ of error proceedings; and it accordingly dismissed the writ of error. 449 S.W.2d 93. We hold that the first opinion and judgment of the Court of Civil Appeals as to jurisdiction was correct, and that its action on rehearing was erroneous.

To place the legal question before us in context, the following is set out. It appears from the pleadings that Jamie's Restaurant in San Antonio entered into a contract with Quality Contractors, Inc. for some improvements. Jamie's Restaurant is owned by a partnership composed of Jim Simon and Dr. T. G. Hatfield who are the petitioners in this Court.

Quality Contractors apparently ordered some rugs and other merchandise from L. D. Brinkman & Co., the respondent here. The merchandise was sent by Brinkman from Dallas to San Antonio, and was installed in the restaurant. Brinkman was not paid, and brought this suit as one on a sworn account against Quality Contractors. Quality Contractors answered, among other things, that it had bought the merchandise for Simon and Hatfield (Jamie's Restaurant).

The plaintiff Brinkman then amended to bring in Simon and Hatfield as defendants. As to them, Brinkman attempted to allege a cause of action for unjust enrichment. Simon and Hatfield answered that their contract had been solely with Quality Contractors; that they had already paid Quality Contractors for the rugs and other merchandise; that they had never entered into any contract with Brinkman; and that Quality Contractors was not their agent.

Meanwhile, Quality Contractors was adjudged bankrupt; and counsel for Simon and Hatfield assumed that the case against them and Quality Contractors would be passed to permit the intervention or the substitution of the receiver in bankruptcy. Accordingly, no one appeared for Simon and Hatfield at the time set for the trial. The case, however, was not passed. Instead, on the day that the case was set, it was called for trial, and the plaintiff Brinkman took a nonsuit as to the bankrupt, Quality Contractors. Since no one appeared for Simon and Hatfield, a judgment Nihil dicit was taken by Brinkman against them.

The judgment was entered on March 28, 1969. On April 23, Simon and Hatfield filed a motion to set aside the judgment, alleging the above circumstances. The motion was overruled on April 30. On May 6, Simon and Hatfield filed their notice of appeal from the order overruling their motion to set aside the judgment of March 28.

The judgment was for $2,173.07 plus interest, $500 attorneys' fees, and court costs which were estimated by the clerk to be $161 for both the trial and the appeal. Simon and Hatfield, to perfect their appeal, put up with the district clerk a cash deposit of $2,987.49, in lieu of a supersedeas and appeal bond. A certificate was made by the clerk on May 28, 1969, to this deposit. This deposit on this date will be referred to several times herein.

Some time later, counsel for Simon and Hatfield determined that their Appeal might not be good since they had not given notice of appeal within ten days of the entry of the Nihil dicit judgment. They therefore determined to bring the case to the Court of Civil Appeals by way of Writ of error; and they received permission from the Court of Civil Appeals to use the same record.

On September 9, 1969, while the appeal was still pending in the Court of Civil Appeals, Simon and Hatfield filed their petition for writ of error in the Court of Civil Appeals. The Appeal was dismissed on joint motion for the parties on October 9, and the $2,987.49 remained on deposit with the district clerk. And here is where the trouble begins. Rule 361 1 says that upon the filing of the writ of error, the appellant shall file an appeal bond, or affidavit in lieu thereof, as provided in the rules. On December 4, 1969, Brinkman filed a motion to dismiss the writ of error because of the failure by Simon and Hatfield to file a bond or affidavit for the writ of error as required by Rule 361. Rule 404 says that all motions relating to informalities in the manner of bringing a case into court shall be filed within 30 days after the filing of the transcript or be waived, if it can be waived by the party.

The district clerk, when the matter became critical on motion for rehearing in the Court of Civil Appeals, issued a certificate that 'a second certificate of cash deposit in lieu of appeal bond was prepared by my office and filed on September 11, 1969.' He further certified that as of the time of the motion for rehearing in the Court of Civil Appeals, 'there is presently sufficient cash on deposit in the District Clerk's office to pay all costs arising out of the trial, the appeal and the writ of error.' But he also certified that 'no (new) appeal bond or affidavit or cash deposit in lieu thereof was filed or deposited' upon the filing of the writ of error; and that Simon and Hatfield had deposited with him 'only one cash deposit, being the sum of $2,987.49 deposited on May 28, 1969.'

The certificate of 'cash deposit in lieu of appeal bond and supersedeas' which is attached to the Writ of error filed on September 9 is apparently a copy of the certificate issued for the Appeal on May 28. It is this instrument or copy, therefore, which the district clerk refers to when he certified that he issued 'a second certificate of cash deposit * * * on September 11, 1969.'

Thereafter the Court of Civil Appeals heard the oral submission of the case on writ of error. Its opinion, on the original submission, overruled Brinkman's motion to dismiss because of the lack of a separate cash deposit or bond for the writ of error. That court then sustained the contentions of Simon and Hatfield as to the Nihil dicit judgment and directed that the cause be remanded for a trial on its merit.

On rehearing, Brinkman filed another motion to dismiss, this time attaching the certification from the district court that only one cash deposit was made, and that on May 28. And, as stated, the Court of Civil Appeals reversed itself, holding that there must have been a separate cash deposit or appeal bond for the writ of error under Rule 361, and this was so notwithstanding the certificate of the clerk that he had issued a second certificate for the writ of error and had on deposit enough cash to cover all costs, both for the appeal and the writ of error.

The general approach of this Court to this type of case may be summarized by reference to four cases.

In Grogan Manufacturing Company v. Lane, 140 Tex. 507, 169 S.W.2d 141 (1943) we said: 'If that which is filed is a bond, though a defective one, and appears to be an attempt to comply with the statute regulating writs of error, the jurisdiction necessarily attaches, because the court is empowered to entertain the case, and permit the party to comply with the law.' (169 S.W.2d at 142)

It was held in Williams v. Wiley, 96 Tex. 148, 71 S.W. 12 (1902), upon discussion of old ...

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  • SCHUCHART & ASSOCIATES, ETC. v. Solo Serve Corp.
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    • U.S. District Court — Western District of Texas
    • April 21, 1982
    ...therefor from him." Simon v. L. D. Brinkman & Co., 449 S.W.2d 90, 92 (Tex.Civ.App.—Waco 1969), reversed on other grounds, 459 S.W.2d 190 (Tex.1970). The essential elements for recovery under quantum meruit are: (1) valuable services were rendered or materials furnished, (2) to the person so......
  • Robertson v. Ranger Ins. Co.
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    ...483. Accordingly, we remand to the court of appeals for consideration of the other points of error presented. See Simon v. L.D. Brinkman and Company, 459 S.W.2d 190 (Tex.1970). ...
  • Salvaggio v. Brazos County Water Control & Imp. Dist. No. 1
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    ...them of an appeal by writ of error. The same would be true of a cash deposit filed within 30 days of judgment. See Simon v. L. D. Brinkman & Company, 459 S.W.2d 190 (Tex.1970). We hold that where an appellant has a choice between an ordinary appeal and appeal by writ of error, the mere fili......
  • Pruet v. Coastal States Trading, Inc.
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    ...out any defect of form or substance within 30 days after the filing of the transcript or the defect is waived. Simon v. L.D. Brinkman & Co., 459 S.W.2d 190, 194 (Tex.1970). If appellee had timely requested dismissal of this appeal due to the defective form or substance of the appeal bond, T......
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