Worth Finance Co. v. Charlie Hillard Motor Co.

• Decision Date: 23 June 1939
• Docket Number: No. 13925.,13925.
• Citation: 131 S.W.2d 416
• Parties: WORTH FINANCE CO. v. CHARLIE HILLARD MOTOR CO.
• Court: Texas Court of Appeals

131 S.W.2d 416

WORTH FINANCE CO. v. CHARLIE HILLARD MOTOR CO.

No. 13925.

Court of Civil Appeals of Texas. Fort Worth.

June 23, 1939.

Rehearing Denied September 15, 1939.

COPYRIGHT MATERIAL OMITTED

Appeal from County Court at Law No. 2, Tarrant County; Thos. J. Renfro, Judge.

Action by the Charlie Hillard Motor Company against the Worth Finance Company and another for alleged breach of warranty in the title of an automobile, for alleged unjust enrichment to the named defendant, and for alleged conversion of the automobile. From a judgment for plaintiff jointly and severally against both defendants for $143.05, and against the unnamed defendant alone for an additional sum of $116.95, the named defendant appeals.

Affirmed.

J. Rob Griffin, of Fort Worth, for appellant.

Slay & Simon, of Fort Worth, for appellee.

SPEER, Justice.

Charlie Hillard, doing business as Hillard Motor Company, to whom we shall refer as appellee, sued Worth Finance Company, a corporation, which, for convenience, we shall call appellant, and Carl Lawder, whom we shall call by name, on three counts in the petition. These counts may be briefly referred to as (1) for breach of a warranty in the title of an automobile, alleged to have been sold by appellant to appellee, (2) for an unjust enrichment coming to appellant from appellee, for which the latter received nothing, and (3) for conversion by appellant of an automobile upon which appellee claimed to have held a valid and subsisting first chattel mortgage lien.

The case was tried to the court without the intervention of a jury, resulting in a judgment in favor of appellee, jointly and severally against appellant (Worth Finance Company) and Lawder, for $143.05, and against Lawder alone for the additional sum of $116.95. By this judgment it will be noted appellee recovered against Lawder for the aggregate sum of $260, while $143.05 of that amount was rendered jointly against the two defendants. Both the appellant and Lawder excepted to the judgment and gave notice of appeal, but the Worth Finance Company alone perfected the appeal to this court.

We are first confronted with appellee's objection to a consideration of appellant's briefs, upon the grounds that they do not conform to the rules prescribed in such cases. It is urged that no assignments of error were filed in the trial court, and none are contained in appellant's briefs; that said briefs contain abstract propositions not applicable to any action of the trial court, and not referable to any ruling of the court, but in the main complain that the evidence adduced upon the trial does not support the findings of fact, upon which the court entered judgment.

Article 1844, Vernon's Texas Civil Statutes, specifically provides that assignments of error need not be filed in the trial court. But that article does require that all assignments shall be contained in appellant's brief, and that they shall distinctly and specifically point out the errors of the court relied upon. Substantially the same language relating to assignments of error is used in Rule 24, as recently promulgated by the Supreme Court, contained in 126 Tex. VI.

Article 1757, Vernon's Texas Civil Statutes, as amended by the 42nd Legislature, c. 45 now provides that a brief, among other things, shall contain, "* * * 2. The alleged error or errors upon which the appeal is predicated." Under this statute, it is not required that a brief shall contain a proposition relating to or explanatory of the error assigned. We have heretofore stated in our opinions, when the subject has been before us, that since such propositions are not prohibited by statute, we welcomed them to be shown in briefs. However, it seems to be the rule now that if counsel chooses to call the error complained of, a proposition, it should not be disregarded on account of the name assigned. We had this question before us in the case of Gavin v. Webb, 99 S.W.2d 372, and there expressed our views on the subject, but the Supreme Court, in dismissing the application for writ of error, 128 Tex. 625, 101 S.W.2d 217, expressed its disagreement with what we had said, and on motion for rehearing by a Per Curiam opinion, said the brief, which we had rejected in part, should have been considered in its entirety. Since the last above expression by the Supreme Court, we are inclined to resolve every possible doubt in favor of the validity and sufficiency of all expressions of complaint presented by appellants in their favor, whether they be called assignments of error, points or propositions. This construction, however, entails decidedly more labor on our part, to search the record of the transcribed testimony, to ascertain if a litigant has received his full rights at the hands of a trial court. To our minds, the statute, as amended, has complicated appellate procedure, rather than simplified it, as it was designed to do. As a matter of fact, the point raised by appellant is one of jurisdiction and is fundamental. This we must take cognizance of, regardless of how it is presented. We therefore overrule appellee's objections and will consider the "propositions" contained in the brief.

If we correctly understand appellant's first proposition, he complains that the trial court committed fundamental error in entertaining jurisdiction of this case, over appellant's plea in abatement, when the evidence upon the trial disclosed that the amount in controversy was less than $200, the minimum jurisdictional amount for a county court.

Under this proposition, counsel for appellant gives us a statement relative to the petition, in support of his contention, in which it is said: "The petition (Tr. 7) alleges the amount paid was $143 for the debt and $75 as costs." He further states that these facts are not questioned by the testimony. We have carefully read the allegations contained in the three counts of plaintiff's (appellee's) petition, and find the quoted expression of appellant somewhat inaccurate. In the first count appellee alleged his damages to be $260 for breach of a guaranty of the title to an automobile. Alternatively he plead in a second count that he had been damaged $260 because of certain wrongful acts of appellant, by which it was enriched out of appellee's funds to that extent, and had given nothing in return. And by a third count he alternatively plead that he had purchased from a Dallas concern a first and superior lien and claim to the automobile, and had paid therefor $218.00, and that appellant had subsequently converted the automobile to its own use and benefit, to appellee's damages in said sum of $218, and that "These damages being made up of the $143 debt owing the Motor Investment Co., plus the $75 expended in protection of the lien. The total damages accruing by virtue of the conversion of said automobile was the sum of $218."

No ruling is shown to have been made by the court on appellant's plea to the jurisdiction, but it appears that at the beginning of the trial the plea was called to the court's attention, counsel stating that he did not wish to waive it but that if the court should see fit to bear the plea in mind and rule upon it later, it would be satisfactory. This the court did. In the findings of fact and conclusions of law, the court found and concluded that it had jurisdiction of the parties and the subject matter, and entered judgment. This, of course, was tantamount to a judgment being entered overruling the plea.

It is a settled rule in this State that, generally, jurisdiction, insofar as the amount in controversy is concerned, is determined by the petition. That question is settled by the averments in the pleadings. 11 Tex.Jur. p. 739, sec. 26, and the many cases there cited. But if it is made to appear by a plea in abatement, supported by testimony, that the allegations of the amount in controversy were fraudulently made to improperly confer jurisdiction, the allegations made under such conditions will not control. The plea in abatement by appellant does charge a fraudulent allegation by appellee to confer jurisdiction, but it is not contended that there was any testimony offered to support the charge. It must follow, then, that since allegations of each count in the petition show jurisdictional amounts, the court was warranted in overruling the plea in abatement and in retaining jurisdiction. It has been held that in doubtful cases all intendments are in favor of jurisdiction, and unless it plainly appears from the allegations that the court is without jurisdiction of the amount, it should retain the case. 11 T.J. 742, sec. 27; Pecos & N. T. R. Co. v. Rayzor, 106 Tex. 544, 172 S.W. 1103. The latter part of the above statement has been criticized as being too broad in some cases, yet we think it very applicable here. There is no merit in the first proposition raising this point, and it is overruled.

The trial court found as a fact and concluded that as a matter of law, appellant and Lawder purchased the car as joint adventurers, for the purpose of selling it for a joint profit to both of them; that they thereafter, on the same day, sold the car to appellee for $260; that appellant made $10 and Lawder made $50; that when they sold to Hillard, they both expressly and impliedly warranted the title; that the title failed, in that the person from whom appellant and Lawder purchased, had no title and moreover that there was an outstanding prior chattel mortgage lien on the car, duly executed by the real owner to Motor Investment Company of Dallas, Texas, and that the mortgage was duly filed for record in that county. There were further findings that at the time appellant and Lawder purchased the car, appellant took a mortgage thereon from Lawder to secure the purchase price advanced by it; that appellant assented to and participated in the sale to Hillard, and that because the purchase was made to enable them to make an immediate sale of the automobile, for a profit, the sale to...