Thacker v. Thacker

• Decision Date: 21 May 1973
• Docket Number: No. 8378,8378
• Citation: 496 S.W.2d 201
• Parties: Leslie THACKER, Appellant, v. Bernice THACKER et al., Appellees.
• Court: Texas Court of Appeals

Page 201

496 S.W.2d 201

Leslie THACKER, Appellant, v. Bernice THACKER et al., Appellees.

No. 8378.

Court of Civil Appeals of Texas,

Amarillo.

May 21, 1973.

Rehearing Denied June 18, 1973.

Leslie H. Thacker, pro se.

Robinson, Fotheringham & Simpson, A. J. Robinson, Gibson, Ochsner, Adkins, Harlan & Hankins, W. P. Sturdivant, Amarillo, for appellees.

REYNOLDS, Justice.

Appellant Leslie Thacker petitions this court by means of a writ of error to review an adverse summary judgment from which her former attempted, tardy appeal was dismissed for want of appellate jurisdiction. Thacker v. Thacker, 490 S.W.2d 234 (Tex.Civ.App.--Amarillo 1973, no writ). Appellee Bernice Thacker has filed a briefed motion to dismiss on the ground that appellant's participation in the summary judgment proceedings in the trial court defeats appellate jurisdiction to review the petition for writ of error. The motion to dismiss is granted and the petition for writ of error is dismissed.

The dismissal motion is premised on Vernon's Ann.Civ.St. art. 2249a. This statute specifies that '(n)o party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error.' The determinative issue respecting the propriety of the writ of error proceeding is whether appellant's actions in connection with the summary judgment proceedings had in the trial court constituted such participation that foreclosed writ of error review. A review of the litigation leading to the final summary judgment reveals the following proceedings.

Bernice Thacker, who was the named beneficiary of a matured group life insurance policy issued by Aetna Life Insurance Company, instituted suit against Aetna to recover the policy proceeds. Aetna, representing that an adverse claim to the policy proceeds had been made by Leslie Thacker, tendered the proceeds into the registry of the court, requested that Leslie Thacker be impleaded and prayed that it be discharged. Leslie Thacker, a licensed attorney, answered and filed a cross-action for herself and on behalf of Vivian Thacker. Both Bernice Thacker and Aetna filed answers to the cross-action. Leslie Thacker's propounded interrogatories to Aetna were answered. Responsive to a motion requiring Leslie Thacker to show the authority by which she, as an attorney, represented Vivian Thacker, Leslie Thacker filed her motion, which was granted, withdrawing as attorney of record for Vivian Thacker, who was dismissed from the cause, and tendered a claim against Bernice Thacker for attorney's fees and expenses allegedly incurred in representation of Vivian Thacker. Bernice Thacker then filed a motion to dismiss Leslie Thacker as an intervenor and Leslie Thacker contested the motion, but the transcript does not reflect that this matter was presented to or acted upon by the trial court.

Bernice Thacker and Aetna each filed a motion for summary judgment referenced to supporting documents. On August 2, 1972, ¹ the trial court entered an order setting the hearing on the motions for September 7. On August 18, Leslie Thacker directed interrogatories to Bernice Thacker, who filed answers thereto. On September 5, Leslie Thacker filed her answer to, and an affidavit submitted in contravention of, the motions for summary judgment. The affidavit contained the statement that Leslie Thacker '. . . cannot be present for this hearing.' No request was made for a continuance. On September 7, the day previously set for hearing the motions for summary judgment, the trial court, finding '. . . that the parties are before the court for a hearing . . .' and '. . . having considered said motions, the pleadings and affidavits on file, . . .' denied Aetna's motion for summary judgment, granted Bernice Thacker's motion and rendered and entered summary judgment decreeing that Bernice Thacker recover the policy proceeds and that Leslie Thacker take nothing.

Thereafter, Leslie Thacker filed a notice of appeal one day too late, a tardy motion for new trial, and an instrument designated as a motion to arrest and reverse the summary judgment. The latter two motions were overruled after an attended hearing thereon by the trial court during the time it retained jurisdiction over the summary judgment. ² The attempted appeal by appellant Leslie Thacker was dismissed for want of appellate jurisdiction, Thacker v. Thacker, supra, this court holding, at page 237, with respect to the entry of summary judgment that:

'. . . Appellant was chargeable with notice of the order entered by the court, especially since it was entered on the very day set for determination of the summary judgment motions with notice to, and acknowledgment by, appellant of the setting.'

The extent of participation in the actual trial that disqualifies an appellant under art. 2249a, V.A.C.S., from review by means of a writ of error appears to be one of degree. Writ of error review is not denied by participation limited to the mere filing of an answer, Petroleum Casualty Co. v. Garrison, 174 S.W.2d 74 (Tex.Civ.App.--Beaumont 1943, writ ref'd n.r.e.), nor to the filing of a motion for new trial, Lawyers Lloyds of Texas v. Webb,137 Tex. 107, 152 S.W.2d 1096 (1941); but, review by writ of error is denied to one who participates in the actual trial that leads to a final judgment, Lawyers Lloyds of Texas v. Webb, supra, or to one who excepts in open court to the judgment. Byrnes v Blair, 183 S.W.2d 287 (Tex.Civ.App.--El Paso 1944, no writ).

The intendment...