Trammell v. Rosen

• Decision Date: 25 June 1913
• Citation: 157 S.W. 1161
• Parties: TRAMMELL et ux. v. ROSEN.
• Court: Texas Supreme Court

Page 1161

157 S.W. 1161

TRAMMELL et ux. v. ROSEN.

Supreme Court of Texas.

June 25, 1913.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by Sam Rosen against W. M. Trammell and wife. Appeal by defendants from a judgment for plaintiff was dismissed by the Court of Civil Appeals (153 S. W. 164), and defendants bring error. Reversed and remanded.

Harris, Harris & Young, of Ft. Worth, for plaintiffs in error. Slay, Simon & Wynn, of Ft. Worth, for defendant in error.

HAWKINS, J.

Defendant in error sued W. M. Trammell upon certain notes executed by him for and purporting to be secured by a vendor's lien upon certain land, including lot 7 in block 56 of Rosen Heights addition to Ft. Worth, praying judgment upon said notes and for foreclosure of said lien upon all of said land. Defendant's wife made herself a party defendant. Defendants pleaded that lot 7 was their homestead under an oral contract of purchase, possession, and occupancy, and valuable improvements made by them thereon, all made prior to purchase by the husband of the other lands and execution and delivery of deed conveying to him all of said lands, including lot 7, and prayed that lot 7 be established as their homestead and exempted from said lien. Defendants also alleged that plaintiff wrongfully and maliciously sued out a writ of sequestration under which, by direction of plaintiff, said alleged homestead and certain personal effects, furniture, etc., were seized and withheld from them, wherefore, they prayed for actual and exemplary damages. The trial court peremptorily instructed the jury to bring in a verdict against W. M. Trammell for the amount of notes sued on, and against both defendants for foreclosure of said lien upon all of the property described in plaintiff's petition, and against defendants on their counterclaim; and the jury did so. Thereupon the court entered judgment accordingly, in usual form, except that it made no express mention of said counterclaim. The verdict of the jury was set out at length in said judgment. Neither verdict nor judgment expressly mentioned said homestead claim. The terms of said judgment appear more fully in the opinion of the Court of Civil Appeals, reported in 153 S. W. 164. Defendants appealed, but the Court of Civil Appeals dismissed the appeal upon the ground that said judgment of the district court is not final, in that it fails to dispose of appellants' cross-action.

The Court of Civil Appeals correctly held as follows: "It can make no difference that the verdict of the jury does dispose of the defendant's cross-action, and that such verdict is recited in the judgment. The verdict but constitutes the facts as ascertained in one of the methods provided by the law, and cannot be made to supply the court's conclusion thereon. To be final, the judgment should further contain the declaration of the court pronouncing the legal consequences of the facts found. See Fitzgerald v. Evans et al., 53 Tex. 461; Mayfield v. State, 40 Tex. 289; Land & Loan Co. v. Winter, 93 Tex. 560, 57 S. W. 39; the unpublished opinion of this court in cause No. 5324, Van Chapman v. Warden, 153 S. W. 937; section 2, Freeman on Judgments."

The controlling issue here, as this case is presented to us, is, Was the judgment in question final? If final, the appeal of plaintiffs in error should have been entertained by the Court of Civil Appeals; if not final, the action of that court, dismissing said appeal must be sustained. Upon that issue there have long been in this state, two well-defined and sharply conflicting lines of decisions by Courts of Civil Appeals. Such conflict arises, principally, it seems, upon the construction given to article 1994, Revised Statutes 1911, relating to the form of judgments of district and county courts; those Courts of Civil Appeals who adhere to a strict rule of construction in the premises, holding that a judgment which does not, in express terms, specifically dispose of a cross-action or counterclaim is not a final judgment such as will support an appeal, and those who adhere to a more liberal rule of construction, holding that a judgment may be final even though it disposes of such cross-action or counterclaim by necessary implication only, without expressly mentioning it. Said statute is as follows: "Article 1994 (1335). The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity."

As pointed out in this case by Chief Justice Conner, of the Court of Civil Appeals for the Second District, that court has steadily and consistenly held to the stricter rule of construction, and has repeatedly refused, as in this case, to entertain jurisdiction of an appeal from a judgment which disposed of a cross-action or counterclaim by implication only. Riddle v. Bearden, 36 Tex. Civ. App. 97, 80 S. W. 1061; Huggins v. Reynolds, 51 Tex. Civ. App. 504, 112 S. W. 116; Lewis v. Kelley, 146 S. W. 1197. See, also, Williams v. Bell, 53 Tex. Civ. App. 474, 116 S. W. 837. To the same effect are the following decisions of the Court of Civil Appeals for the Third District: G., C. & S. F. Ry. Co. v. Stephenson, 26 S. W. 236; Clopton v. Herring, 26 S. W. 1104; Sapp v. Anderson, 135 S. W. 1068. See, also, Hedrick v. Smith, 146 S. W. 305.

The Court of Civil Appeals for the Fourth District holds in accordance with the more liberal rule of construction, treating as final certain judgments which did not specifically mention or expressly dispose of pleas of reconvention, set-off, etc. Hoefling v. Dobbin, 40 S. W. 58; Lewis v. Smith, 43 S. W. 294; Bemus v. Donigan, 18 Tex. Civ. App. 125, 43 S. W. 1052; Kirby v. Linn, 34 S. W. 162. See, also, American Road Mch. Co. v. City of Crockett, 49 S. W. 251; Woolley v. Sullivan, 43 S. W. 919; N. Y. & T. Land Co. v. Votaw, 52 S. W. 125; Swearingen v. Williams, 28 Tex. Civ. App. 559, 67 S. W. 1061.

To the same effect were the decisions of the Court of Civil Appeals for the Fifth District in Bowman v. Saigling, 111 S. W. 1082, and Crain v. Ins. Co., 56 Tex. Civ. App. 406, 120 S. W. 1099, citing Rackley v. Fowlkes, 89 Tex. 613, 36 S. W. 77; and Davies v. Thomson, 92 Tex. 391, 49 S. W. 215; Lewis v. Smith, supra; Bemus v. Donigan, supra.

These decisions of the Courts of Civil Appeals for the Fourth and Fifth Districts, respectively, proceed upon the theory that the general judgment in favor of plaintiff against the defendants adjudicates all matters pleaded in the cross-action as effectually, for all practical purposes, as though the judgment embodied an express finding thereon in a specific sum in favor of defendants, and then deducted that sum from...