Winters Mut. Aid Ass'n Circle No. 2 v. Reddin

• Decision Date: 16 May 1932
• Docket Number: No. 1548-5866.,1548-5866.
• Citation: 49 S.W.2d 1095
• Parties: WINTERS MUT. AID ASS'N CIRCLE NO. 2, v. REDDIN.
• Court: Texas Supreme Court

Page 1095

49 S.W.2d 1095

WINTERS MUT. AID ASS'N CIRCLE NO. 2, v. REDDIN.

No. 1548-5866.

Commission of Appeals of Texas, Section A.

May 16, 1932.

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

Action by J. E. Reddin against Winters Mutual Aid Association, Circle No. 2. To review a judgment of the Court of Civil Appeals [31 S.W.(2d) 1103], affirming a judgment of the district court in favor of plaintiff, defendant brings error.

Reversed.

Beall & Beall, of Sweetwater, and O. L. Parish, of Ballinger, for plaintiff in error.

Thomas J. Coffee and Thomas & Coffee, all of Big Spring, for defendant in error.

SHARP, J.

J. E. Reddin sued Winters Mutual Aid Association, Circle No. 2, of Winters, Tex., and A. O. Strother, president of the board of directors, R. L. Stokes, secretary-treasurer, C. G. Smith, Fred Tinkle, and John Q. McAdams, directors of said association, for $1,000, with interest thereon, from December 15, 1928, until paid, at the rate of 6 per cent. per annum, and recovered judgment against Winters Mutual Aid Association for that amount. An appeal was made to the Court of Civil Appeals at Eastland, and the judgment of the trial court was affirmed. 31 S. W.(2d) 1103.

Upon application of Winters Mutual Aid Association the Supreme Court granted a writ of error.

Defendant in error moves that the petition for writ of error in this cause be dismissed, and that this cause be dismissed from the docket for the following reasons:

(1) That original cause No. 5120 was tried in the district court of Mitchell county, Tex., and judgment rendered therein on the 9th day of November, 1929; that an appeal was duly made to the Court of Civil Appeals and the judgment of the trial court was affirmed by that court. That the cause is now pending in the Supreme Court upon writ of error which was granted.

(2) That on the 11th day of January, 1932, Winters Mutual Aid Association filed a petition in the district court of Mitchell county in the nature of a bill in equity, asking that the judgment rendered therein in cause No. 5120 be vacated and set aside, alleging that certain perjured testimony was given by defendant in error; that plaintiff in error did not learn of these facts until long after the original trial was had, and not in time to have presented them to the trial court in a motion for new trial, or that they could have been brought up by appeal. Citation was asked on said plea, and defendant in error filed an answer thereto. Certified copies of the petition and answer accompany the motion made by defendant in error to dismiss the petition for writ of error and also the cause from this docket.

The courts of this state are liberal in construing the rights of litigants in prosecuting appeals to the appellate courts. However, when a writ of error is granted by the Supreme Court, it has the effect to deprive the trial court of jurisdiction of that case pending the appeal. The writ applied for and granted was based upon the errors committed by the trial court and Court of Civil Appeals in disposing of the merits of this cause. Until those issues are disposed of, the Supreme Court has exclusive jurisdiction. The rule is well settled that, if it appears that the matters complained of in the equitable suit to vacate the original judgment could have been presented to the trial court in the original proceedings, and brought up by appeal for review, a suit in equity to vacate the judgment would not lie. This rule rests upon the principle that it is the policy of the law to avoid a multiplicity of suits. Waggoner v. Knight (Tex. Com. App.) 231 S. W. 357; Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994, 995; Hermann v. Allen, 103 Tex. 382, 128 S. W. 115. The rule is also well established that the right to appeal or bring error may be waived by pursuing a remedy inconsistent with an appeal or writ of error. 3 Tex. Jur. p. 159, § 100. The foregoing rules will not be invoked in this case, unless it is shown that plaintiff in error has pursued a remedy inconsistent with an appeal or writ of error, or that the matters complained of in the suit in equity to set aside the original judgment could have been presented to the trial court for a ruling thereon, and brought up by appeal.

The courts of this state have established a rule that any person injured in a judgment may at a subsequent term institute a suit to set aside such judgment and retry the cause. This is an equitable proceeding. The essential elements must be alleged showing in particular that the judgment was obtained through the wrongful conduct of the opposite party, unmixed with fault upon the part of the complainant, and, moreover, that the complainant has a meritorious defense which, if heard, would probably bring about a different result. This proceeding is essentially a new suit upon which citation must issue, if no voluntary appearance be made. The proceeding does not contemplate the granting merely of a new trial, but it contemplates a re-examination of the entire case. For a full discussion of the rules announced with respect to filing of a suit to vacate a judgment rendered at a prior term of the court, we refer to the following decisions: Johnson v. Templeton, 60 Tex. 238; Nevins v. McKee, 61 Tex. 412; Sharp v. Schmidt, 62 Tex. 263; Roller v. Wooldridge, 46 Tex. 485; Overton v. Blum, 50 Tex. 417; Aetna Ins. Co. v. Brannon, 99 Tex. 398, 89 S. W. 1057, 1060, 2 L. R. A. (N. S.) 548, 13 Ann. Cas. 1020; Owens v. Foley, 42 Tex. Civ. App. 49, 93 S. W. 1003 (W. ref.); Humphrey et al. v. Harrell (Tex. Com. App.) 29 S.W.(2d) 963; Empire Gas & Fuel Co. v. Noble et al. (Tex. Com. App.) 36 S.W.(2d) 451; Brown v. Clippinger, 113 Tex. 364, 256 S. W. 254; Harding v. W. L. Pearson & Co. (Tex. Com. App.) 48 S.W.(2d) 964.

An appeal by writ of error is to review the errors committed by the trial court and the Court of Civil Appeals. A suit in equity to set aside the judgment goes to the very foundation of the judgment, and does not involve a revision of the judgment for errors committed. The functions of such a suit are entirely distinct from the functions of an appeal from the judgment assailed. The pleadings filed in the trial court to vacate the judgment rendered at a prior term show that none of the matters complained of in this appeal are alleged as a cause for vacating the judgment. Of course litigants will not be permitted to review in the suit in equity to vacate the original judgment any matters involved in the appeal, or that could have been brought up by appeal in the original proceedings.

When we consider this record in the light of the foregoing rules, the fact that plaintiff in error is prosecuting an appeal from the original judgment does not affect its right to file a suit in equity to set aside that judgment, nor does the filing of the equitable proceedings to vacate the original judgment affect the jurisdiction of the Supreme Court to pass upon this appeal. In our judgment, the proceedings filed in the trial court to vacate the judgment upon equitable grounds are not inconsistent with the appeal in this cause. The sufficiency of the allegations contained in the petition is not involved here. Therefore, we overrule the motion to dismiss the application for a writ and the cause from the docket.

Plaintiff in error also contends that, the case having been submitted to the jury upon special issues, it was error for the trial court to give the explanation in connection with special issue No. 2, which was in effect a general charge.

The trial court submitted to the jury special issue No. 2 which reads: "Is the plaintiff, J. E. Reddin, totally disabled? Answer Yes or No. Answer Yes."

The court, in connection with issue No. 2, gave the following explanation which reads as follows: "If you find from the evidence that the said J. E. Reddin is suffering from impairment of his feet of such nature and to such extent as renders him unable to perform all labor and work necessary to be done to enable him to successfully follow the occupation of a tenant farmer and to render him unable to perform all labor and work necessary to enable him to successfully follow the occupation of a barber, and as to render him unable to perform all the work and labor necessary to enable him to successfully follow any and all other substantial occupations open to a laboring man, and which he would be able to follow were it not for the condition of his feet, then the said J. E. Reddin is totally disabled within the meaning of the above question; but if the said J. E. Reddin is able to perform all the work and labor necessary to enable him to follow the occupation of a tenant farmer, or the occupation of a barber, or of any other substantial occupation open to a laboring man which he would be able to follow were it not for the condition of his feet, then he is not totally disabled."

Plaintiff in error in timely manner excepted to the explanation given by the trial court in connection with special issue No. 2, upon the following grounds: (1) That it was a general charge; and (2) that the definition of "total disability," as applied to the facts of this case, was incorrect.

The Court of Civil Appeals held that there was no error in giving this explanation. Article 2189, R. S. 1925, provides that, when a case is submitted on special issues, the court shall submit only "such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues."

It is clear that the special charge given was not an explanation such as contemplated by the statute and is not a definition. It is clearly a general charge and is improper where a case is submitted to the jury upon special issues. Texas & P. Ry. Co. v. Perkins (Tex. Com. App.) 48 S.W.(2d) 249; Kemper v. Police & Firemen's Ins. Ass'n (Tex. Com. App.) 48 S.W.(2d) 254, on motion for rehearing; Turner v. Missouri, K. & T. R. Co. (Tex. Civ. App.) 177 S. W....