Talmadge Tinsley Co., Inc. v. Kerr, 19030
| Decision Date | 08 July 1976 |
| Docket Number | No. 19030,19030 |
| Citation | 541 S.W.2d 207 |
| Parties | The TALMADGE TINSLEY CO., INC., Appellants, v. David J. KERR, Appellee. . Appeal Dismissed on Motion of Appellee on |
| Court | Texas Court of Appeals |
Marshal W. Dooley, Herndon, Girand & Dooley, Dallas, for appellants.
William W. Wilson, Law Offices of David A. Witts, Dallas, for appellee.
ON MOTION FOR REHEARING
After a nonjury trial, the judge signed a draft of judgment on March 3, 1976, and then signed another on April 17, 1976. We heretofore dismissed the appeal on the ground that no appeal was perfected from the first judgment and that the second judgment was void because, under Tex.R.Civ.P. 329b(5), the first judgment became final and not subject to modification thirty days after it was signed. Appellants now move for a rehearing contending that the first judgment was interlocutory only, and, alternatively, that the second judgment was a nunc pro tunc correction of the first. We hold that the first judgment was final and that the second judgment cannot be considered a correction of the first. Consequently, we overrule the motion for rehearing.
Our decision turns on whether there was any material difference between the two judgments. We hold that there was none. The suit was based on a contract for the sale of land. The purchaser, David J. Kerr, sued for specific performance and for a contractual attorney's fee, naming as defendant The Talmadge Tinsley Company, Inc. and Talmadge Tinsley. The petition alleges that the individual defendant was acting as 'agent, servant and/or employee' of the corporate defendant, and, in the alternative, that he was the apparent agent of the corporation. The first judgment awards plaintiff judgment for title to the land and for the claimed attorney's fee against 'Defendants Talmadge Tinsley and The Talmadge Tinsley Company, Inc.' The second judgment is identical, except that defendants are named as 'Defendants The Talmadge Tinsley Company, Inc. and Talmadge Tinsley Individually and as agent, servant or employee of The Talmadge Tinsley Company, Inc.'
Appellants argue that the first judgment was interlocutory because it did not dispose of appellee's action against Talmadge Tinsley 'as agent, servant or employee' of the corporate defendant. This argument is untenable because the first judgment disposes of plaintiff's claims against both defendants and the words added to the second judgment...
To continue reading
Request your trial
-
RSR Properties, Inc. v. Federal Deposit Ins. Corp.
...were made outside of the scope of their employment. Such a showing is required to proceed against them individually. Talmadge Tinsley Co., v. Kerr, 541 S.W.2d 207, 209 (Tex.Civ.App.-Dallas 1976, writ ref'd n.r. The pleadings establish that the individual Defendants were not parties to any c......
-
Hur v. City of Mesquite
...of Dallas, Inc. v. Seale, 554 S.W.2d 211, 213 (Tex.Civ.App.--Dallas 1977, writ ref'd n.r.e.); Talmadge Tinsley Co., Inc. v. Kerr, 541 S.W.2d 207, 209 (Tex.Civ.App.--Dallas 1976, writ ref'd n.r.e.). Here, the Hurs alleged Barron misrepresented to them and the mediator that he had the authori......
-
Pan American Bank of Brownsville v. Nowland
...has no liability in a representative capacity distinct from the liability of his principal. Talmadge Tinsley Co., Inc. v. Kerr, 541 S.W.2d 207, 209 (Tex.Civ.App.--Dallas 1976, writ ref'd n.r.e.). We hold that Nowland, as a signatory to the Agreement empowering the trustee to incur debt, is ......
-
Crowe v. Smith
...does the court mention D'Oench, Duhme. Instead, the court relies exclusively on the state court case of Talmadge Tinsley Co., v. Kerr, 541 S.W.2d 207, 209 (Tex.Civ. App.-Dallas 1976) for the proposition that in order to proceed against the former officers individually, plaintiff must prove ......