James T. BOHART, Appellant, v. FIRST NATIONAL BANK IN DALLAS, Appellee.
No. 4888.
Court of Civil Appeals of Texas, Eastland.
March 11, 1976.
Rehearing Denied April 8, 1976.
534 S.W.2d 234
The record reflects that probation was revoked and sentence was pronounced on September 8, 1975. An original motion for new trial was filed on September 17, 1975, and the motion was amended on October 6, 1975. See
We have observed that, since a probation revocation proceeding is tried before the court without the intervention of a jury, no rule requires the trial court to consider a motion for new trial. See Munoz v. State, 155 Tex.Cr.R. 223, 233 S.W.2d 494 (1950). In Taylor v. State, 172 Tex.Cr.R. 45, 353 S.W.2d 422 (1962), we noted that a trial judge was not without authority to grant leave to file a motion for new trial or to grant it, but it was not held that the court must consider the motion and the case was decided on other grounds. In Ausborne v. State, 499 S.W.2d 179 (Tex.Cr.App.1973), we stated that the proper remedy for challenging a probation revocation order is to give notice of appeal to this Court. Such notice must be given or filed within ten days after pronouncement of sentence. See
If a trial court grants leave to file a motion for new trial or to amend an original motion for new trial after probation is revoked, sentence should not be pronounced until after the motion has been overruled by action of the court or by operation of law. If such leave is granted after imposition of sentence, the sentence should be set aside and sentence repronounced after the motion is overruled by the court or by operation of law.
In the instant case notice of appeal was not given within ten days after the pronouncement of sentence on September 8, 1975, nor was such sentence set aside and repronounced after the motion for new trial was overruled. For either reason the appeal must be dismissed.
Nevertheless, we note that under
The appeal is dismissed.
Opinion approved by the Court.
Tom James, Dallas, for appellant.
Bruce W. Claycombe, Dallas, for appellee.
RALEIGH BROWN, Justice.
This is a suit on a promissory note executed by James T. Bohart and his now deceased wife, Jean P. Bohart, payable to First National Bank in Dallas. Following the death of Jean Bohart and default on the note, the bank sold certain stocks and bonds pledged to secure the indebtedness evi-
James Bohart and the independent executor of the Estate of Jean Bohart filed pleas in abatement seeking to abate the suit by authority of
First National Bank‘s motions for severance of its claim against James Bohart from Bohart‘s counterclaim against the bank and for severance of the bank‘s claim against James Bohart from the bank‘s claim against the independent executor were granted. Summary judgment was then entered against James Bohart for the indebtedness, interest, attorney‘s fees and also the judgment ordered foreclosure of stocks pledged to the bank by James Bohart to secure his indebtedness. James Bohart appeals.
Bohart argues the trial court erred in granting First National Bank‘s motion for severance as to his counterclaim. We agree.
The counterclaim seeks damages for the wrongful liquidation of securities pledged as collateral for the note sued on by the Bank. Such a counterclaim meets the provisions of
“Compulsory Counterclaims. A pleading shall state as a counterclaim any claim within the jurisdiction of the court, not the subject of a pending action, which at the time of filing the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party‘s claim and does not require for its adjudication the presence of
third parties of whom the court cannot acquire jurisdiction.”
See also McDonald, Texas Civil Practice, Vol. 2, § 7.49.
The trial court abused its discretion in severing the Bank‘s claim from Bohart‘s compulsory counterclaim arising out of and turning upon the same facts. Spangler v. Hickey, 401 S.W.2d 721 (Tex.Civ.App.-Tyler 1966, no writ); Bolding v. Chapman, 394 S.W.2d 862 (Tex.Civ.App.-Austin 1965, writ ref. n. r. e.); Connell v. Spires, 264 S.W.2d 458 (Tex.Civ.App.--Eastland 1954, no writ); Ulmer v. Mackey, 242 S.W.2d 679 (Tex.Civ.App.-Fort Worth 1951, writ ref. n. r. e.); McDonald, Texas Civil Practice, Vol. 3, § 10.25.
The instant case is distinguishable from a line of cases that support the proposition that a claim for wrongful attachment or wrongful sequestration is not a compulsory counterclaim. Capetillo v. Burress & Rogers, 203 S.W.2d 953 (Tex.Civ.App.----Galveston 1947, writ ref. n. r. e.); Fisher v. Howard, 389 S.W.2d 482 (Tex.Civ.App.-Dallas 1965, no writ); Security State Bank and Trust v. Craighead, 440 S.W.2d 701 (Tex. Civ.App.-San Antonio 1969, writ ref. n. r. e.). The court in Capetillo v. Burress & Rogers, supra, stated:
“A wrongful sequestration is in the nature of an abuse of process of court procured by a party to a suit. It does not arise out of a transaction or occurrence which is being litigated, but arises out of the wrongful act of a party to the litigation in seeking to enforce rights arising out of the transaction or occurrence which is the subject matter of his suit. We must therefore hold that Rule 97(a) is not applicable.”
In the instant case, the liquidation of the pledged securities arises out of the transaction which is being litigated between the parties. It is within the jurisdiction of the court and does not require for its adjudication the presence of third parties.
This holding makes it unnecessary to consider the other points of error, the judgment is reversed and the cause remanded.
ON MOTION FOR REHEARING
We hold the compulsory counterclaim of Bohart and the Bank‘s claim involve identical facts, issues, and subject matter, and are so interwoven a severance would occasion unnecessary litigation and a multiplicity of suits. As stated in 3 McDonald, Texas Civil Practice § 10.25 (1970):
“. . . The trial court should not sever the plaintiff‘s claim from the defendant‘s compulsory counterclaim, or a cross-claim between defendants, arising out of and turning upon the same facts . . .”
The granting of the severance was an abuse of discretion. Bates v. First National Bank of Waco, 502 S.W.2d 181 (Tex.Civ. App. - Waco 1973, no writ).
We can find nothing in the record to cause us to change the judgment heretofore entered. The motion for rehearing is overruled.