Midland Casualty Co. v. Arnott
199 S.W. 890
Tex. App.
1917
Check Treatment

*1 n (Tex 199 SOUTHWESTERN REPORTER 890 possession, having assignment writ of or from The first is: and ever maintaining any fendant, tenements against the action whatever de- sustaining ex- “The erred in defendant’s court assigns, or his heirs for lands or the orig- ceptions 5, plaintiff’s inclusive, from 1 to to by such suit.” recovered by judgment petition, inal in this shown as the cause.” authority, Whilst there is conflict of some party we think true be that the the rule to assignment error The that it second was is recovering the the land had 12 months after of the exception appellee’s the to sustain to sixth the final order action court terminated which petition reads: which improve- pay which for the original within to excepts plaintiff’s peti- “Defendant to negative judgment ments, recovering the facts stated party tion therein because and the any defendant, plaintiff against in action favor of cause of improvements the for after the had 6 months affirmatively plaintiffs that and show expiration year period from of one of the prayed the mandamus for.” are not entitled to pay such final order to val- within which the sought by appeal petition be this to The by ue the land. trial court for the fixed brought Eain A. held sufficient reveals that J. words, bond, filing appeal In other an al- try trespass against in to suit T. A. Nelms though appeal only, prosecuting an for costs and judg- land, a to of and title 12 acres secured pending continuing had the a effect of the ment for for the land and defendant Supreme of case the final order the until judgment improvements. The his value of Trunk which terminated the Court cause. judgment 8,May is provides 1911. further The dated Ry. Bros., 608, 85 Tex. 22 S. Co. v. Jackson plaintiff may pay the value of that App. 1030; Bank, Fenton W. 27 Tex. v. Civ. improvements year and have the within one 231, 65 W. 199. S. further, possession, and, in that his writ of appears affirmatively It that de- further plaintiff pay not the the case value of did original the in at the fendant Nelms suit improvements, 6 then the defendant had dead, instituting and suit time of it this was pay year $125 months the one to of the after plain- petition appears in that the nowhere title, The value of land and etc. the take filing complied 3724, Vernon’s article tiff had with only appealed by cost bond cause was Sayles’ of Texas: Statutes 281), (opinion affirming judgment, 156 S. W. money judgments “In of other all cases than 27, Application and affirmed March 1913. judgments, where defendant one or the sole or joint defendants, by Supreme shall after writ was overruled more of several judgment, die for of error being upon an affidavit of such death 22, 1913, xxiii, S. Court 159 W. and October clerk, together filed with with the certifi- the April 17, Young, 1915, on W. for the that H. representative appointment cate such clerk of the court wherein such a of of the of legal representatives and said heirs Nelms, of decedent, hand of the under and seal the appointment was paid the said of to clerk sum the proper process judgment made, shall the on such $125. against representative.’; issue such [1] It from the state will be noted above appears the the also from face of [2] It paid money 18 ment that the was within petition controversy there a between that is Supreme months the final order of the from repre legal plaintiff this and heirs and the error, denying writ of but not within Court title Nelms the of deceased over sentatives judgment of date the 18 months of the of land, persons are said of to the and that none controlling question is: The district court. Was the parties It set is well to this action. made filed, provided appeal since it bond parties be at interest should all tled that supersede costs, only the to for sufficient parties proceeding for in a mandamus. made appellees permit pay judgment to to as so Power, 68; 2 v. Mc Tex. Jefferson Smith v. did, they in the of the land at date the value Faddin, 714, 178 W. and the authorities S. months the 18 of date of stead of within latter. cited in the judgment? the court’s trial It not error to the therefore sustain was provisions judgment to the of The conforms petition. exceptions It that to the follows Sayles’ 7765, articles Vernon’s Stat- 7764 and affirmed, judgment of must be dismissal the utes of Texas: ordered. and it is so any trespass try “Art. 7764: In action of to title, when the lands or tenements have been WALTHALL, sit, J., being not absent did adjudged plaintiff, and the to the estimated value assisting Supreme judges improvements of on the in the committee of the use and judged shall be date of pay the amount of such excess of value of the damages occupation has and been ad- Court. possession defendant, writ of to the no year the term of one the issued for after judgment, plaintiff the the unless shall the v. CO. ARNOTT. the to clerk court for defendant MIDLAND of the de- the of CASUALTY judgment in favor (No. 1365.) fendant, with the interest thereon. Appeals (Court of Amarillo. Texas. of Civil plaintiff neglect “Art. 7765: If the shall for Rehearing, 19, Motion for 1917. On Dec. year pay term to over the the of one amount of 16, 1918.) Jan. judgment defendant, in favor of said the with — Appeal thereon, preced- — in interest article, directed the the ing months after as Error and Jurisdiction ®^54 shall, and the defendant within six Amount Involved —1“Interest.” expiration judgment upon pay year, the the sued of said interest to Accrued on plaintiff 1589, 1911, court for the Rev. St. art. the clerk'of the of the is “interest” within value regard giving Appeals appel- 3, the of lands or tenements without to the subsec. Courts Civil by jurisdiction judgments exceeding $100, improvements, then jury, as estimated the court or late over plaintiff costs, shall be forever barred his interest and and interest of exclusive of such the topic Key-Numberea Digests oases other same and and Indexes <§s»For see KEY-NUMBERin all *2 y. Tex.) CASUALTY ARNOTT MIDLAND CO. 891 jurisdictional suit, tbe curred in make some other cannot be included to and which were amount. sought to be collected in the suit at bar. definitions, [Ed. see Words Note.—For other plaintiff The in this did not case seek to re- Series, Phrases, Interest.] First and and .Second cover the costs incurred the in former suit. by appel- Some of Court; the decisions referred to Appeal County T. from W. Potter lant where interest was taken into McBride, Judge. considera- determining tion in the amount in controver- by against the Midland Action John Arnott sy, statutory provisions are on plaintiff, based Casualty Judgment which Company. for appear provision do not contain dismissed, to the appeals. Appeal of our defendant and excluding determining statute in interest rehearing and for overruled. motion jurisdiction. the appel- Dooley, Amarillo, Turner for & of opinion We are of the that we are without Amarillo, ap- Hazlewood, for lant. R. of R. jurisdiction, appeal the and should be dis- pellee. missed. judgment BOYCE, on a Rehearing. J. The suit was On Motion for by $02.20, 23, 1914, for March which dated holding We think we in were correct the at its terms bore interest from said date the judgment that the interest on a recoverable cent, per judg- per annum. The rate of 6 ment in this 1917, properly is denominated “interest” as that September 6, was rendered ease fixing jurisdic term is in our used statutes plaintiff and that recover the said was tion of the courts. A consideration of the cent, $92.20, per sum of with interest from 6 Smelser, 26, cases of Baker v. 88 Tex. 29 S. 23, 1914, wit, aggregate to $18.60 March —an 378, 163, W. 33 L. R. A. and v. Tess Schulz Appellee to the $110.80. of appeal moves dismiss man, 488, 1031, 92 Tex. in 49 S. W. connec jurisdiction in for want of this court. provisions 72, Interest, tion with the of title 1589, 3) (article § this Under the statute Statutes, of our that the Revised shows word jurisdiction judgment, if or court has “the “interest,” in as it is used the on statutes controversy, judgment or amount in the the rendered, jurisdiction, necessarily does not refer to $100.00, shall exceed exclusive of by interest, appel- contractual as contended -qualification and costs.” The “ex- interest Smelser, supra, lee. In case Baker the of v. evidently ap- clusive of interest and costs” is said: it jurisdictional facts, to each of the to expressly Xfiies wit, provide tbe “When statute does not judgment,” recovery interest, “the in “the amount contro- of it for the not eo the allowed is nomine, is, interest, that not as but mere- versy,” judgment and “the rendered.” We ly damages. probably It as would be more cor- controversy, think it clear that amount in the say to, that rect to rate of interest is resorted costs, $92.20, exclusive of interest and was damages accruing in order to measure the from money, judgment the loss the use of tbe in of as the case because the principal sued on was for the money, of conversion of conversion which the in case of so the the $92.20, by sum of and its terms many goods, of in and others in cent, per per interest at the drew rate of 6 expressly statute not a does create * (cid:127)* annum, liability legal Recurring, and the sum $18.60 of was recovered for interest. then, under it provision to the of the Constitution now Tessman, as eo interest nomine. Schulz v. opinion consideration, are to cases in which inter- we of the that 488, judg- 92 Tex. 49 S. W. 1031. Was the apply to was intended case, in rendered this ment est not be unless we exclusive of inter- by given statute, expressly est is and not those merely costs, and in in the rate of interest $100? excess of It which is taken as would by part a standard which to in the measure the term construe “interest” damages be recovered.” to meaning only judg- as the interest that the Referring “Interest,” to the title the same rendition, ment itself bear should after its being Statutes, title 72 of the Revised we find and not interest included eo nomine in the the first article this title in- that terest of defines judgment itself. The intention of the law- as: makers seems to have been to exclude the by compensation by “The allowed law or fixed consideration of eo in interest nomine deter- parties tbe a contract for the use or to forbear- jurisdiction mining exclusion, court, the the of and this money.” ance detention of or think, apply we should whether it provide Subsequent articles of the title for judgment is interest which the itself bears rate of interest on written the contracts as- already or interest accrued and included in certaining payable speci- the sum when not principal judgment. the to of the This seems contract, by upon accounts, etc., fied the and holding been in have the the of case Ft. expressly provides judg- that article 4981 ments the Little, 55, Bank v. Worth State and the inference of 168 S. W. of the several courts of this state shall to be drawn the from case cent, per per at rate bear interest the of 6 Kelley Lodge, etc., v. Audra 176 S. W. 784. accruing annum, etc. The interest on such by have the cases We examined referred to clearly judgment a is as interest as that ac- appellant, and do not consider them incon- open cruing the written contract on or ac- They conclusion. sistent with our are all by count, provided other as articles of this from other states. In cases some of them statute. title of the judg- were to recover on a former the suits rehearing motion for is The overruled. including ment, suit, the the costs of former HUFF, J., sitting, being and it was held the costs which are ex- O. not that absent in jurisdiction judges determining passing in the committee of cluded were Austin with on bar, applications the suit at and not for writs of error. costs of those in-