United Producers' Pipe Line Co. v. Lantry-Fike Const. Co.

• Decision Date: 12 November 1921
• Docket Number: (No. 9693.)
• Parties: UNITED PRODUCERS' PIPE LINE CO. v. LANTRY-FIKE CONST. CO.
• Court: Texas Court of Appeals

238 S.W. 331

UNITED PRODUCERS' PIPE LINE CO. v. LANTRY-FIKE CONST. CO.

(No. 9693.)

Court of Civil Appeals of Texas. Fort Worth.

November 12, 1921.

Rehearing Denied January 21, 1922.

Writ of Error Dismissed for Want of Jurisdiction March 15, 1922.

Appeal from District Court, Parker County; F. O. McKensey, Judge.

Suit by the Lantry-Fike Construction Company against the United Producers' Pipe Line Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Glover C. Johnson, of Fort Worth, and Hood & Shadle, of Weatherford, for appellant.

Carter & Queen, of Weatherford, and E. F. Cadwell, of Tulsa, Okl., for appellee.

CONNER, C. J.

For an understanding of the question presented on this appeal, it will only be necessary to state that the appellee company sued the appellant company in the court below upon a specified contract for the construction of a pipe line from Fort Worth to Mingus, Tex. It was alleged that the appellant company had breached the contract; that during its continuance the appellee had constructed 145,740 feet of the line, for which they were to receive the specified rate of 12¾ cents per foot. There were other allegations relating to other elements of damage, about which no question is presented, and which, therefore, we need not detail.

The case was submitted to a jury upon special issues, in answer to which the jury found that the appellant company breached the contract, and that thereunder the appellee company had fully completed 246,500 feet of the line. The jury also found the value of certain extras that the plaintiff alleged had been furnished, and also the value of a certain number of feet of the line that had not been fully completed. From this statement it will be observed that the jury found 100,760 feet more of the line fully completed than the plaintiff had alleged. For this excess a remittitur was offered and received, and the court thereupon entered up a judgment in favor of the plaintiff company for $8,569.82, from which judgment appellant duly prosecutes this appeal.

But two questions are presented. It is first urged that the court erred in failing to sustain appellant's motion to strike out the deposition of the witness J. T. Lantry. The deposition was taken before a notary public in Oklahoma, and the reason assigned in the motion for its exclusion was that:

"It was not returned to the court in accordance with the provision of the law governing the same."

The statute relating to the subject reads thus:

Article 3662: "Depositions may be returned to the court either by mail, by a party interested in taking the same, or by any other person; and the clerk or justice taking them from the post office shall indorse on them that he received them from the post office, and sign his name thereto. If sent otherwise than by mail, the person delivering them into court shall make affidavit before the clerk or justice that he received them from the hands of the officer before whom they were taken; that they have not been out of his possession since, and that they have undergone no alteration."

Upon the hearing of the motion, as shown by the bill of exception taken to the court's ruling, E. F. Cadwell presented a formal affidavit in writing to the effect that he had received the deposition from Nell Ledford, the notary public who took it, and that it had not been out of his possession from the time he received same until he reached the court house at Weatherford, Parker county, Tex., and that—

"During said time said deposition had not been opened and had not undergone any alteration; that upon arriving at the district court room in Parker county, Tex., he delivered same to Nolan Queen, one of the attorneys for plaintiff, who immediately handed and filed same with the district clerk in his presence and sight; that said depositions were not opened and did not undergo any alteration from the time they were delivered to him (Cadwell) until they were delivered to the district clerk of Parker county, Tex."

Nolan Queen also made and presented a formal affidavit to the effect that—

The deposition in question "was given him by E. F. Cadwell in the district court room of Parker county, Tex.; that said deposition was filed by him at once and directly with the district clerk of Parker county, Tex.; said deposition was not out of his possession from the time he received it from E. F. Cadwell until delivered to the clerk of said district court; that during the time said Nolan Queen had said deposition in his possession it did not undergo any alterations nor was it opened by him or by any one else after he received same until same was delivered to the said district clerk and was in the same condition when he delivered it to said clerk as when he received it from the said E. F. Cadwell."

We are in accord with the opinion of our Supreme Court in the case of Creager v. Douglass, 77 Tex. 484, 14 S. W. 150, to the effect that the statute quoted is intended to secure and preserve evidence of the correctness of the deposition and of their freedom from being tampered with, by the observance of the regulations prescribed. But in the case before us if the return was not in literal compliance with the terms of the statute, it was certainly, as we think, in substantial compliance therewith, and hence the court did not err in overruling the motion. To hold otherwise would be to give greater effect to the letter of the law rather than to its substance and spirit.

Error is next assigned to the action of the court in receiving the plaintiff's remittitur and in entering up a judgment as he did, the contention being, in substance, that upon the incoming of the verdict that the only lawful action that the court could take was to enter up a judgment in accordance with the jury's special finding, or to set it aside wholly and grant a new trial. That the action of the court in receiving the remittitur and in granting the appellee a judgment for the full amount of the finished line alleged by him was, in effect, a substitution of a finding by the court for the finding of the jury, which should not have been done.

In aid of these contentions, appellee cites articles 1986 and 1990 of the...