Williams v. Knight Realty Co.

• Decision Date: 21 June 1919
• Docket Number: (No. 9135.)
• Citation: 217 S.W. 755
• Parties: WILLIAMS v. KNIGHT REALTY CO. et al.
• Court: Texas Court of Appeals

217 S.W. 755

WILLIAMS v. KNIGHT REALTY CO. et al.

(No. 9135.)

Court of Civil Appeals of Texas. Ft. Worth.

June 21, 1919.

On Motion for Rehearing, October 25, 1919.

On Second Motion for Rehearing, December 20, 1919.

Appeal from Wise County Court; J. W. Walker, Judge.

Suit by I. R. Williams against R. G. Hoge, in which the Knight Realty Company and A. L. Lane intervened. From judgment in favor of the interveners, plaintiff appeals. Judgment in favor of the intervening company affirmed; judgment in favor of the individual intervener reversed and rendered in favor of plaintiff.

S. D. Williams, of Wynnewood, Okl., Ratliff & Spencer, of Decatur, and Sam J. Hunter, of Ft. Worth, for appellant.

McMurray & Gettys, of Decatur, for appellees.

BUCK, J.

This is the second appeal of this case, the opinion on the first appeal being found in 193 S. W. 168. Upon this appeal we are confronted with a question as to our jurisdiction. The judgment in the trial court was rendered October 18, 1917, the judgment overruling the motion for new trial was rendered December 31, 1917. The petition for writ of error was filed in the court below December 16, 1918, the bond being filed the same day. We conclude that the petition for writ of error came too late. In estimating the time, 12 months, within which the writ of error should be sued out, the period should commence with the date of the judgment, and not with the date of the overruling of the motion for new trial. Vernon's Sayles' Civil Statutes, art. 2086; Cooper v. Yoakum, 91 Tex. 391, 43 S. W. 871; Evans v. San Antonio Traction Co., 166 S. W. 408; Kolp v. Shrader, 168 S. W. 464; Ry. Co. v. Stapp, 171 S. W. 1080.

It therefore becomes our duty to dismiss the appeal for want of jurisdiction; and it is so ordered.

On Motion for Rehearing.

Plaintiff in error files a motion for rehearing, alleging that we were in error in dismissing the appeal for want of jurisdiction. He says that the date of the judgment as given in the record is an error. That October 18, 1917, given in the record as the date of the judgment, was in fact the date of the trial. That judgment was not entered until October 31st. He admits:

"There is nothing in the record to show when that judgment was rendered, except at the head thereof when it came on to be tried."

He urges that, as the transcript does show that the plaintiff below, plaintiff in error here, filed his motion for judgment on December 28, 1917, and that interveners filed their motion for judgment on December 8, and as the record further shows that plaintiff filed his motion for new trial on December 28, and that the court's judgment and order overruling plaintiff's motion for judgment appears of date December 31, this court must know that the date of the judgment as it appears in the record is an error. The contention of plaintiff in error that the record tends to show that the date of judgment is erroneous, and that this court ought to entertain jurisdiction of the appeal, would come with more force in his petition for writ of error, filed December 16, 1918, did it not recite that the judgment from which the writ of error was prosecuted was rendered October 18, 1917. Moreover, defendants in error, in their brief, object to the consideration of the appeal, for lack of jurisdiction, and state that the judgment was rendered on October 18, 1917, and that the petition for writ of error and the writ of error bond were filed December 16, 1918, more than 12 months later. If the plaintiff in error desired to correct the record so as to make it show what is claimed to be the true date of the judgment, he should have filed his motion to that end in the trial court.

In the state of the record and in face of the objection by the defendants in error urged, we do not feel justified, merely upon an unverified motion for rehearing, to grant a rehearing and entertain jurisdiction. While under article 1593, V. S. Civ. Stats., Courts of Civil Appeals have power, upon affidavit or otherwise as by the courts may be thought proper, to ascertain such matters of fact as may be necessary to the proper exercise of their jurisdiction, yet it seems that this power is restricted to matters not appearing of record, and does not admit of facts contradicting the record. Ennis Mercantile Co. v. Wathen, 93 Tex. 622, 57 S. W. 946; Gibson v. Sewing Mach. Co., 145 S. W. 633; Seiter v. Marschall, 105 Tex. 205, 147 S. W. 226; Dixon v. Lynn (Sup.) 154 S. W. 656. No request is made by plaintiff in error that this court hear evidence, nor is any evidence by affidavit, sworn plea, or sworn testimony tendered. Under such circumstances, we conclude that the motion for rehearing should be overruled; and it is so ordered. Davis v. McGehee, 24 Tex. 210, cited in Smith v. Buffalo Oil Co., 99 Tex. 77, 87 S. W. 660, and in W. U. Tel. Co. v. O'Keefe, 87 Tex. 423, 28 S. W. 945.

On Second Motion for Rehearing.

Plaintiff in error has filed his motion for leave to file his second motion for rehearing. Accompanying said motion for leave is a second motion for rehearing, to which are attached affidavits from one of appellant's counsel, the county clerk, and the trial judge, to the effect that the judgment below was not in fact entered until the last day of the term of court, to wit, December 31, 1917, and that the recitation in the judgment, as shown in the record, that judgment was entered October 18, 1917, is erroneous. In view of the facts disclosed by the record that plaintiff in error filed his motion for judgment December 28th, and the interveners filed their motion for judgment December 8, 1917, we have concluded that the conflict as to dates presents such an ambiguity as justifies the hearing of evidence or the consideration of affidavits touching this matter of jurisdicton. Therefore we grant plantiff in error's motion for leave to file his second motion for rehearing, and, upon consideration of said last-named motion, grant the motion for rehearing and entertain jurisdiction of this appeal so that we may consider the same upon its merits.

As shown in the statement of the case on the first appeal, reported in 193 S. W. 168, to which reference is made for a fuller statement of the facts, this is a suit instituted by plaintiff, I. R. Williams, in the county court of Wise county against R. G. Hoge, to recover $720 alleged to be due the plaintiff as commission on an exchange of property between said Hoge and one G. W. Riley. Hoge filed an answer, admitting the material allegations of the plaintiff's petition, and tendered into court the sum of $720. The Knight Realty Company (a firm composed of C. C. Knight and G. R. Wood) and A. L. Lane, a real estate agent, intervened, alleging that interveners were the procuring cause of the exchange upon which Williams based his claim for commission; that they had acted together with said Williams in bringing the respective owners together; and that prior to the exchange of property it had been agreed on the part of Williams that the commission paid and to be paid by the respective owners of the property should be pooled and equally divided among the three parties or firms mentioned. It was further alleged by the interveners that it was the universal custom among real estate men, under circumstances such as alleged, to so pool and so divide their commissions. The plaintiff Williams denied the agreement and custom set up by the interveners and the trial resulted in favor of each of the interveners as against Williams for $233.33 of the $720, allowance being made for the $100 paid by Riley as commission, of which amount Williams had received no part. Williams has appealed by writ of error.

The cause was submitted on special issues, and the jury found in answer thereto:

(1) That at and prior to the exchange of properties mentioned there was a universal custom existing in that section of the country among real estate brokers, where more than two brokers were interested representing the parties engaged in negotiating a deal, for the brokers to pool their respective commissions and divide the same between themselves equally.

(2) That plaintiff agreed, either expressly or impliedly, with interveners to pool his commission with theirs and divide the same equally among the three agents or agencies involved.

(3) That plaintiff knew that intervener Lane was not an agent or representative of the Knight Realty Company.

(4) That the defendant R. G. Hoge did not know that interveners were to receive any part of the commission he agreed to pay plaintiff, nor did he know of any custom existing among real estate brokers that under the circumstances shown they were to divide equally among them the commissions.

(5) That I. R. Williams, at the time the transfer of property between Hoge and Riley was made, knew that three real estate men or firms were interested in making the exchange.

Plaintiff in error assigns error to the refusal of the court to grant his motion to enter judgment in his favor for the entire amount of the commission, claimed of and paid by defendant R. G. Hoge, said motion being based on the jury's answer to the effect that Hoge did not know of any...