Weisenberger v. Lone Star Gas Co.

• Decision Date: 03 April 1953
• Docket Number: No. 15433,15433
• Citation: 257 S.W.2d 331
• Parties: WEISENBERGER et al. v. LONE STAR GAS CO. et al.
• Court: Texas Court of Appeals

Page 331

257 S.W.2d 331

WEISENBERGER et al. v. LONE STAR GAS CO. et al.

No. 15433.

Court of Civil Appeals of Texas, Fort Worth.

April 3, 1953.

Rehearing Denied May 1, 1953.

Frank R. Graves, Fort Worth, for appellants.

Thompson, Walker, Smith & Shannon and Richard T. Churchill, Fort Worth, for appellee Lone Star Gas Co.

C. Gordon Whitman, Fort Worth, for appellee Charles Mitchell.

BOYD, Justice.

On October 14, 1950, J. H. Weisenberger, who was the owner of Lot 32, Block 9, Weisenberger City Addition to the City of Fort Worth, Texas, entered into a contract to sell said land to Charles Mitchell and Mitchell entered into possession under the contract, which obligated him to pay $32.50 per month, and thereafter defaulted in the payments and was dispossessed by Weisenberger in October, 1951. Mitchell's contract with Weisenberger provided that in case of rescission he would immediately and peacefully surrender possession to Weisenberger with any improvements made by Mitchell thereon.

On March 8, 1951, Lone Star Gas Company entered into a conditional sales contract with Mitchell to sell him a water heater and other equipment, for which Mitchell agreed to pay a balance of $288.50 in thirty monthly installments. Said contract provided that the equipment should be and remain personal property and that title should be retained by and in the seller until all payments should be made in full, and that the seller could repossess and remove the property upon default. The equipment was installed in a house on said Lot 32. Mitchell defaulted in November, 1951, in his payments to Lone Star.

Lone Star sued Mitchell for debt in the amount of $285.17 and for foreclosure on the water heater, and sued for foreclosure against Weisenberger and J. E. Hampton, the latter being the occupant of the house at the time of suit. Mitchell asked for judgment over against Weisenberger and Hampton for any amount due by Mitchell on the equipment. Trial before the court resulted in a judgment for plaintiff against Mitchell for its debt and for foreclosure against all defendants upon the water heater, and judgment for Mitchell over against Weisenberger for any excess against Mitchell after sale of the heater. Weisenberger and Hampton appealed.

The court found that the water heater is not attached to the realty so as to become a fixture thereto, although susceptible of being so attached, and that it can be removed without any damage to the freehold and without impairing the security for the lien retained by Weisenberger in his contract with Mitchell.

Appellants contend that the trial court was without jurisdiction to render the judgment of foreclosure because there was no allegation or proof of the value of the property; that it was error to foreclose a lien on only a portion of the equipment in the absence of allegations and proof of the value of the chattel foreclosed; and error to render judgment against Weisenberger in favor of Mitchell; that the court erred in admitting in evidence as against the appellants the conditional sales contract between Lone Star and Mitchell because the plaintiff had not complied with Article 5498, R.C.S., in the registration of the contract, and because there was a variance between the description of the water heater in the petition and in the contract; and that the evidence did not support the court's finding that the water heater is not attached to the realty so as to become a fixture thereto.

Plaintiff's petition shows that the amount of the debt sued for was $285.17 and alleged that this was the reasonable value of the equipment and services, but the value of the water heater foreclosed upon was not alleged. There was no motion or exception to the plaintiff's petition pointing out any failure to allege jurisdictional facts, and we hold that the defect, if any, was waived. Erminger v. Daniel, Tex.Civ.App., 185 S.W.2d 148; Rule 90, T.R.C.P.; Litterst v. Edmonds, Tex.Civ.App., 176 S.W.2d 342; Texas Osage Co-op Royalty Pool v. Kemper, Tex.Civ.App., 170 S.W.2d 849, writ ref. The sale price of the heater was $199.75, and the court found that the proportionate part of the total sum due under the conditional sales contract allocable to the heater was $194.99. In the absence of a plea to the jurisdiction, allegation of the amount in controversy determines jurisdiction. Lunsford v. Pearce, Tex.Civ.App., 19 S.W.2d 71; Sparkman v. First State Bank of Handley, Tex.Civ.App., 246 S.W. 724; Dwyer v. Bassett, 63 Tex. 274; Tidball v. Eichoff, 66 Tex. 58, 17 S.W. 263; 21 C.J.S., Courts, § 69, p. 94.

We are of the opinion that since Weisenberger was a prior interest holder in the real estate and Article 5498 applies only where there are subsequent interest holders, it is unnecessary to determine whether the registration of the conditional sales contract sufficiently complied with that Article.

We believe the evidence supports the findings of the trial court that the water heater is not attached to the realty so as to become a fixture thereto and that it can be removed without damage to the freehold and without impairing Weisenberger's rights under his contract with Mitchell, and that the court did not err in foreclosing the mortgage against the appellants as persons in possession of the chattel. The heater being personal property and subject to the chattel mortgage lien, it did not become a part of the realty under the circumstances disclosed by this record.

In Willis v. Munger Improved Cotton Machine Manufacturing Co., 13 Tex.Civ.App. 677, 36 S.W. 1010, writ denied, it was held that machinery, the purchase price of which was secured by chattel mortgage and which was capable of removal without injury to the realty, does not become subject to a prior vendor's lien. To the same effect is the decision in Murray Co. v. Simmons, Tex.Com.App., 229 S.W. 461. In Southwestern Public Service Co. v. Smith, Tex.Civ.App., 31 S.W.2d 472, 477,...