Waurika Oil Ass'n v. Ellis

• Decision Date: 10 October 1923
• Docket Number: (No. 1772.)
• Parties: WAURIKA OIL ASS'N et al. v. ELLIS.
• Court: Texas Court of Appeals

254 S.W. 1032

WAURIKA OIL ASS'N et al. v. ELLIS.

(No. 1772.)

Court of Civil Appeals of Texas. Amarillo.

October 10, 1923.

Appeal from District Court, Wichita County; Edgar Scurry, Judge.

On motion to correct and vacate judgment. Motion overruled.

For former opinion, see 232 S. W. 364.

Alexander & Baldwin, of Fort Worth, for appellants.

Bonner, Bonner & Sanford, of Wichita Falls, for appellee.

HALL, C. J.

The appellant brought this case from the district court of Wichita county, by filing the record in this court in August, 1920. The judgment below was against the association, and appellee was denied a judgment against W. R. Shankle, one of the trustees. In his original petition he alleges that the Waurika Oil Association is a joint-stock association, with W. R. Shankle, Y. E. Hildreth, and T. A. Edmonds as trustees, organized under a declaration of trust, vesting full control and management of its affairs in such trustees. From the judgment against the association, the association alone filed a motion for new trial and gave notice of appeal, filing a supersedeas bond with the district clerk on June 28, 1920. The bond recites that the association, Hildreth, and Edmonds gave notice of appeal, and further recites:

"Now, therefore, we, the Waurika Oil Association No. 1, and Y. E. Hildreth and T. A. Edmonds as principal, and the other subscribers hereto, as sureties, do acknowledge," etc.

The bond is signed as follows:

"Waurika Oil Association No. 1, W. R. Shankle, Trustee, J. Harrison White, Trustee, Trustees. Y. E. Hildreth, by W. F. Weeks, Attorney of Record, T. A. Edmonds, by W. F. Weeks, Attorney of Record, Principals. J. L. Wilkins, R. H. Wilkins, Sureties."

The appeal was heard in this court, and an opinion rendered June 1, 1921, affirming the judgment of the trial court. The motion for rehearing was submitted June 14, 1921, and overruled on June 22d. Mandate was issued April 1, 1922, and on June 29, 1923, more than two years after the judgment was rendered affirming the judgment below, Y. E. Hildreth and T. A. Edmonds filed this motion to vacate the judgment of this court as to them.

If it be admitted that the relief prayed for in the motion could be granted we think the movants have waived their right to such relief by the delay of more than two years after the judgment was rendered and more than three years after the execution of the bond, and by failing to call the matter complained of to the attention of this court in the motion for rehearing. First State Bank & Trust Co. v. O. D. Mann & Co. (Tex. Civ. App.) 209 S. W. 683; Ferguson v. Beaumont L. & B. Co. (Tex. Civ. App.) 154 S. W. 303; Clark v. Briley (Tex. Civ. App.) 193 S. W. 419; Murphy v. Williams, 103 Tex. 155, 124 S. W. 900; Engle v. Rowan (Tex. Civ. App.) 48 S. W. 757; Woodhouse v. Cocke (Tex. Civ. App.) 39 S. W. 948; Howth v. Shumard (Tex. Civ. App.) 40 S. W. 1079; Zapp v. Michaelis, 56 Tex. 395; Milam County v. Robertson, 47 Tex. 222; Smith v. Alston, 40 Tex. 139.

It is not the purpose of this proceeding to have a judgment of the trial court corrected, amended or set aside. The matter complained of relates to the judgment of this court, which was properly entered upon the supersedeas bond, brought up in the record in compliance with V. C. S. 1922, art. 1627. The motion under consideration is not verified, and, as a ground for the relief prayed for, charges that W. F. Weeks, appellant's attorney, through mistake, signed the names of Hildreth and Edmonds to the bond as principals and appellants. If the statement be accepted as true it raises no question affecting the jurisdiction of this court over the appeal. It simply raises an issue of fact, which, if not waived, must be settled in the trial court. The supersedeas bond was originally a part of the record of the trial court. Hamilton v. Eiland (Tex. Civ. App.) 181 S. W. 260; Ennis Mercantile Co. v. Wathen, 93 Tex. 622, 57 S. W. 947.

Upon affirming the judgment of the court below, it becomes the duty of this court to summarily enter judgment here against the obligors in the supersedeas bond. Burck v. Burroughs, 64 Tex. 445; Blair v. Sanborn, 82 Tex. 686, 18 S. W. 159; V. S. C. S. art. 1627.

Aside from the question of waiver, we think, upon the merits, the motion should be overruled. It appears from the record that the Waurika Oil Association is an unincorporated association with the above named parties as trustees. It is held in Nini v. Cravens & Cage Co. (Tex. Civ. App.) 253 S. W. 582, and the authorities cited, that such an organization, operating under a trust agreement, is in legal effect a partnership. V. S. C. S. art. 6149, provides that any unincorporated joint-stock company or association may sue or be sued in any court of this state having jurisdiction of the subject-matter in its company or distinguishing name and that it shall not be necessary to make the individual stockholders or members thereof parties to the suit. In the absence of this provision of the statute this action could not have been maintained without making the trustees and members of the association parties defendant. Standard Light & Power Co. v. Muncey, 33 Tex. Civ. App. 416, 76 S. W. 931; Slaughter v. American Baptist Publication Society (Tex. Civ. App.) 150 S. W. 224; Leyhe v. Leyhe (Tex. Civ. App.) 220 S. W....