*1 transcript containing supplemental clerk a summary judgment and the
the motion for al., PRUDENTIAL et CORPORATION by the considered Appellants, depositions three other trial court. v. al., Appellees. appel- transcript was delivered to Abe BAZAMAN et clerk and filed by the district lant’s counsel No. 841. February Both 1974. our Court on 25th and after March
briefs were filed Appeals Texas, Civil Corpus required by weeks notice giving the four Christi. May 412,1 on was submitted Rule the cause 20, 1974. June heard, and the arguments were 1st. Oral Opinion Filing on of Remittitur 1974. cause was decided June July “A will be provides: cause Rule prepared submission properly transcript exhibits of the record
when a appeal in prepared for accordance cause rules, court un- and filed with these rules, of one or of both der briefs with parties expected, parties. All will be submission, the tran- to see that before properly prepared.” script of the record It Rules 428 and 429 is seen that supple grant wide discretion our Court transcript facts or statement of ment the It is our so omitted matter. as to include opinion should be that such discretion exercised, unusual in the absence some
circumstance, material permit so as to new hаs appellate filed be judg opinion rendered its written its contrary be ment. action would Such purpose Rules and 413 spirit orderly administra and interfere with the justice. Mor-Win Sympson tion of Products, Inc., (Tex.Civ. Cole App. writ); no Worth — Fort Co., Employers Insurance man v. Pacific (Tex.Civ.App. Tyler S.W.2d — e.); writ ref’d n. r. Stanfield Kroll, (Tex.Civ.App.— S.W.2d e.). n. ref’d r.
Houston [1st] Garcia, 155 Tex. See also Saldana (1955). amend the record de- The motion to rehearing Appellant’s has motion nied. and overruled. been considered Procedure. of Civil to the Texas Rules 1. All references are
«7
OPINION
NYE, Chief Justice.
This is set aside execution suit to appeal sale. The arises from consolida- separate tion of two lawsuits at- *3 tempted piece real try prop- to title to a action, erty. The and after consolidation amendment, actually brought by one appellees set Bazaman and Woods aside the sale of a lot with im- execution provements belonging to lo- thereon Woods Corpus City cated in the Addi- Christi. tionally, appellees sought damages for repossessed certain items were ap- should have been claimed plied prior a to reduce the amount of mon- ey judgment against and for Wоods exem- plary had damages. Trial was before jury. upon jury’s Based answers Special Issues, judgment was rendered for appellees. At some Billy time Joe notes, Woods executed two one for $2,235.60 the other and for $402.00. larger by note was secured Buick auto- by mobile and the smaller note color televi- sion set and four Cadillac aluminum “Mag” The notes came wheels. into possession Company, Finance General one the appellants. in Woods defaulted payments Finance seized General mag the automobile and the wheels and brought Judgment suit on notes. was entered Company for the Finance July the unpaid of 1970 for the amount of notes, $2,282.13, balance of costs. duly Sep- abstracted in tember of and several executions attempted were thereon without success. meantime, In the Finance General sold the repossessed automobile of and its Woods manager, Painter, gave away mag Jack Despite action, wheels. no credit was given to Woods on his debt. In June Nuss, Mobley, Kleberg, Lockett & Henry against had been entered and ab- Woods Christi,
Weil, appellants. Corpus for stracted, piece sold Woods on one Morris, Corpus Bazaman, Cole Street Abe Barrow, Nicolas & Jоhn appellees. In Fi- October of General Christi, appellees. fair value of on on its had a market another execution nance ordered the sale. The found date of judgment against Woods. On November irregularities the constable’s 23, 1971, his deed there were Bazaman recorded given a a) sale in that: was never him property, sold to Cole Street designate property he wished chance to as a result December Woods. On on; given writ- levied Woods was not execution, b) sold Constable sale; the constable c) ten notice of the at property. The biddеr Cole Street levy Painter, $1,000.- did not endorse a bid this sale who was Jack however, that none found, the The amount of allegedly credited the irregularities these above mentioned con- judgment. Painter bid to the inade- producing grossly Company and tributed to manager Finance of General failed quate price; that Finance General President and stockholder Vice the auto- give a credit after appellant Corporation, Prudential other repos- mag which it mobile or the wheels allegedly Prudential who herein. It was *4 sessed, which the total fair market value of property at the purchased the Cole Street maliciously $950.00; Painter acted and and, therefore, was under claims sheriff’s sale rights disregard for the of with conscious deed. constable’s gave and Bazaman when he: (1) Woods the execution Sometime wheels; away into mag (2) and broke property Painter went on the Cole Street property changed and the Cole Street residence lo- changed on the and the locks result, locks; jury exem- awarded precipitated two cated there. plary in the damages in two issues: 1) in try trespass title: one lawsuits in to $4,529.93 in amount of favor Woоds Painter, Pru- sued which Bazaman d/b/a $1,500.00 Fi- 2) and in of Bazaman. favor Painter Corporation and dential d/b/a nally, jury that had of- found Woods another Company; and Finance General pay fered to the full amount of Painter in property same involving suit judgment in cash at some time to Corporation Bazaman. sued the Prudential February in 117th These were consolidated cases County. District Nueces Woods Court of in favor of judgment was entered Final of Bazaman the side then intervened on re- judgment The Bazaman and Woods. petition, amended they jointly filed an and and deed that the constable’s salе 1) cited: claims, set to subject to their title other aside; 2) 7, 1971, set December were irregu- because of sale aside the constable’s suit nothing in its title Prudential take that on the made an attack was larities. Since Bazaman; original that against 3) pursuant issued to under the execution sale Company Finance General Court, the District the 105th credited with was to be against Woods back into was transferred entire case of the automobile (the value $950.00 105th for trial. $1,373.- leaving a mag wheels), balance 30, 1970,un- plus July interest from 6% presented the was After the evidence equaled (this the date of til spe- jury to case was submitted to ; entitled $219.73) that was 4) Woods jury findings can The cial issues. relevant gave exemplary damages which $4,529.13 as follows: Bazaman be summarized Painter recovery against him a net Jack conspire delay de- did not Woods in- $2,936.87plus Finance of and General convey- existing fraud creditors Woods’ entitled terest; Bazaman was that 5) to Baza- property ance of the Street Cole damages exemplary recover 1971; June, in Finance Com- man General Corpora- and Prudential Painter against judg- its pany gave never credit on Corporation, tion; Prudential 6) that Jaсk sold; property and the ment perma- were Finance Painter General sale $1,000.00 price bid at the constable’s interfering with enjoined nently from grossly inadequate since Painter, possession Defendant, legal the Cole title M. title or of Bazaman on Jack finally, Jr., irregulari- the costs property; following because of the 7) Street Painter, : adjudicated against were General ties
Finance and Prudential.. irregularities omitted) (enumeration points er- appellants The advance WHEREFORE, considered, premises ror 3 main groups divide into . . on final pray . that Plaintiffs first argument. The the purpоses hearing the Constable’s Sale complains the trial erred group that in and void and all be declared null ” aside the sale because setting constable’s aside; . . . things be set therefore, and, could it not void clearly a as whole were pleadings addition, directly. they con- be attacked In sale as well direct attack on the constable’s irregular- tend that the found that trespass try title as a suit. to the the sale did contribute ities price them grossly inadequate giving thus give the Procedure Rules of Civil Our allegations defense to the absolute in or- procedures which be followed must set irregular and should be the sale was in a sale under fairness der to insure aside. 621-656, Texas Rules of execution. Any deviations of Civil Procedure. Rules group relates error of The second irregulari- considered rules are from these damages. awarding punitive trial court three ir- in this case found ties. necessary It for us consider is not *5 ample evidence. based regularities the result we have group third because of was never First, they that Woods found reached hereinafter. sale; second, given notice of the written given opportunity an was not Woods out appellants contend at the in property to be sold violation designate appellees’ is collateral attack set that suit and, third, 647; the found Rule of and the on the execution sale levy his not endorse that the constable did accordingly. set aside To should be on the in violation of property of the writ contention, that It true disagree. we is irregulari- In addition to these Rule 639. original filed his from the time Bazaman price ties, that for found intervened, petition until suit property grossly was sold was which the (trespass in set forth causes of action tort inadequate (the bid try trespass title. conversion) and $12,000.00). prоperty was value not be overturned The execution sale could de- Supreme cases are Court There two they pleadings since amounted under these year of each other within a cided than a direct attack. a collateral rather Law in this the Texas beginning of are Snowball, v. Tex. 81 S. See Moore 98 Runge v. is & first Kauffman area. The Saathaff, (1904); 363 W. 5 Cameron Morriss, (1883) where the rule Tex. 119 Antonio (Tex.Civ.App. S.W.2d — San stated follows: e.). n. r. writ ref’d Tex.Jur.2d Woods, However, 131. when Executions § is not in it- inadequacy price of “Mere debtor, intervened original interfer- warrant the self sufficient joint Bazaman thеir filed and Woods setting purpose of equity for ence di petition, the constable’s sale came under sale of a sheriff’s aside petition states The amended rect attack. in- to such in if addition . ‘But that: un- any appearance there be adequacy circumstance, or accident any or fairness the Court “Plaintiffs would further show aof to the sale in relation Sale, or occurrance the Constable’s held on inade- to cause such tending character wholly inad- about December 1971was set aside.’ be the sale will pass quacy, equity, in equate, both law and (citatiоn omitted) dispropor- When determined the evidence whether or from tion between value of the not the irregularity any had influence price and the its upon sold enor- the consideration which the mous, slight but additional circumstances property sold. is not a matter law If justify the will inference that the sale is to be assumed court.” Id. at 607 fraudulent. Accord, McGown, McKennon v. 11 S.W. (Tex., 1889). What pur- causes are sufficient for this pose any general cannot be reduced to Despite the quoted language above rule, but must he such as were cal- from Allen v. Pierson the courts of this culated to prevent the property from have State allowed or infer presumption value, bringing its something reasona- ence fraudulent sale to arise in favor of bly near what it bring public should at party irregularity shows an who both
sale, particular and which on the occa- gross price. inadequacy of State produced sion have actually that effect.” Mortgage Corp. Ludwig, 121 Tex. (emphasis Id. at added) (1932). presump tion irregularity can also arise that opinion pinpoint does not type inadequate price contributed to the without irregularity necessary, which is but at- affirmatively showing the connection. tempts up to set a sliding scale based on Stith, Tex.Civ.App. McLean v. inadequate price how greater is. The (1908, ref’d); S.W. Sias inadequacy price slighter Berly, (Tex.Civ.App. 245 S.W.2d type irregularity which will overturn —Beaumont reversed on other the sale. It is interesting also to note that grounds 505). 152 Tex. Supreme price this case held way, gross inadequa Stated another when of less than of the fair value market ¾2th cy price coupled irregu shown with disproportion” “enormous and that irregularities larities be irregularity complained of was failure Currey, come material. Nance v. 257 S. give *6 thе debtor notice. These al- are 847, 1953, (Tex.Civ.App. W.2d 850 — Dallas most the exact same facts as the case be- h.). n. w. In Rio Delta v. Land Co. John fore us. son, 346, 475 (Tex.Civ.App.— S.W.2d year Pierson, One later in Allen v. 1971, Corpus e.) Christi writ ref’d r. we n. Tex. 604 (1884), Supreme the Court cov- said: ered Allen, much of the ground. same In “Generally, irregularities in a sheriff’s irregularities the relied on were failure to standing might sale alone not warrant give notice and to failure allow the debtor setting aside of an execution sale. designate to property to be levied on. The However, irregularity when such is cou- jury inadequate had price fоund an but the pled inadequate purchase with a grossly appealed defendant claiming he was enti- price, material, the irregularity becomes tled to a charge inquiring whether the ir- giving rise to a cause of action to set regularities brought inadequacy. about the sale, aside the (citing authorities) Supreme agreed saying: by
“In and the charge (trial) judgment . aWhere creditor be- assumed that the failure of the officer to purchaser comes the at an execution levy, etc., demand a necessarily conduced he is deemed to have all notice of inadequаcy to the of consideration paid of the errors irregularities that oc- for the land. To that proposition we proceedings curred in the judg- itself, yield cannot . assent. . . But under (citing ment If the authority) owr system it a question is to be judgment purchased creditor the land at of fact indebtedness, pay to off purchase prompt offer pays sale execution an sale. aside step in and set equity will with crediting judgment by price Miller, 155 S.W. In Moore v. innocent bid, an he is not amount of 1913, writ Antonio (Tex.Civ.App. authori- (citing value. purchaser — San opin Fly Judge in a well considered ref’d) ties) .” into court “Appellees tendered ion stated: these cases judgment of all of reading pay A sum to off sufficient A costs; interest, following court, conclusion. us justice’s leads to of the an execution inadequacy set seeking to aside plaintiff held that where and it has been irregularity calculated alone, an defendant show and the price sale must stands price. inadequate in pay effect the sale off prompt makes a offer supra; Johnson, v. debtedness, Delta Land Co. sale.” equity Rio will aside the set Avinger, Bank of Brimberry Saylors v. First State also Citing authorities. See (Tex.Civ.App. Wood, S.W.2d 839 (Tex.Civ.Aрp. S.W.2d — Texarkana gives proof e.). ref’d n. r. —El 140 S. Paso aff’d 135 Tex. Wheeler, sale was inference that rise to an Cox v. 164); W.2d irregularity contrib fraudulent or that (Tex.Civ.App. — Texarkana price. The burden to the low in h.). Special uted n. w. One of the Issues evidence with the going quired pay forward offered to as to whether Woods show, possible, if shifts to the defendant to Painter the amount of Jack not of did complained irregularity that the prior February cash price. It inadequate contribute to the ample jury There was found that he did. re inference we important to note that the support this hold evidence to issue. We defendant if the fer to rebuttable price jury properly that the found that did irregularities offers evidence that the inadequate; offer Woods that an price. Al inadequate to the contribute pay off the was made to Painter to Jack Heisig, Pierson, supra; indebtedness; len v. Snouffer in cash and that was made it Tex.Civ.App. 130 S.W. February hold 1972. We (1910, h.).w.n. prompt at a time close this was a offer aft made
proximity to the
A tender
sale.
suffi
er
sale
considered
appellants re
In the
at bar
case
Miller, supra.
cient in
See Moore
law.
stated
favorable
аnswers which
ceived
sufficient
These
of the
were
answers
irregularities
contributed
that none of
trial court
uphold
grossly inadequate price.
have
to the
We
setting
the sale.
aside
grave
any evidence
doubts that there was
support
jury’s
is
to these
answers
*7
However,
appellees
sues.
failed
have
that
the
complain
appellants
Next
disregard
the trial court
the answer
is not
issue #19
jury’s
special
answer to
Therefore,
and an
these
the issues
issues.
Issue
Special
supported by the evidence.
swers must
could
stand. The trial court
inquires:
disregard
findings
these
in the absence
301,
of а written
Rule
T.R.C.P.
motion.
preponderance
you
from a
“Do
find
gave
Finance
the
that General
evidence
however,
say,
This is not to
that
judgment
$1,000.00 on its
credit of
defense
appellants have
an absolute
shown
payment
against Billy Joe
as a
judgment
or that
are entitled to
sale?”
property
sold at execution
in
irregularities,
matter of law. Without
alone, is not
price, standing
adequacy of
There
not.”
do
answered: “We
But
sheriff’s sale.
sufficient to set aside a
answer.
support this
ample
is
evidence
price and a
inadequacy of
where there is
Although the sheriff noted that
purchaser.
the win-
tual
A judicial
sale
not com
ning
$1,000.00,
bid was
credited
judg-
plete
proper
until a
bid
complied
with.
ment, Painter himself
testified that
the Texas Building
Morris,
Mortgage
&
Co. v.
$1,000.00 was never credited to the account
Finance’s record of the Woods indebted- aside Bazaman the execution sale. ness was sale, the same before the amendment, Woods, state that in their trial sale, up to the date of the trial. void should to be deed be held sheriff’s description (describing in it because the finding raises an additional mistake. is a property) Cole Street ground to support judgment the trial Appellees undisputed that it is that claim court. The evidence is that uncontradicted property not the sub- Cole was Street winning only bid was the bid on this 7, 1971, ject of the December sale. property is, sale, at the that Painter’s offer $1,000.00 worth of credit on judg prior execu At time to the As one general judicial ment. rule all sales suit, tion another is, however, are for in this Woods owned cash. excep There piece Na proрerty (which general to the we call tion rule and that is where ples property). When the October judgment Street pur creditor becomes the issued, it chaser at execution was described the sale. Under such circum stances, Del Mar on Lot Block execution may apply creditor Addition, Naples Street which was the amount of his bid as a credit on his de judgment. The return the execution Cooney, Needham v. 173 S.W. property scribes the con levied on (Tex.Civ.App. Paso — El stable Addi ref’d) and as Block Del Mar “Lot numerous cases cited therein. “Lot (the Naples property) tion Hеre, Street Executions it § Tex.Jur.2d (a 24, Del Mar Addition” Block only uncontroverted that the costs were neither cash, foreign paid piece of (of $1,000.- bid successful prop Naples nor describes Cole Street 00) was supposedly a credit on judg erty). neither Yet, It will be noted that clearly ment. the record that shows prop descriptions fit the these Cole Street Corporation Prudential the grantee re erty deed appears later in the deed, in the cited not the credi Lot Mar Addition. Block Del tor. Painter denies agent that he was the deposition that testified constable Cоrporation Prudential. Prudential 38, (the Naples he Block sold Lot exception avail cannot itself of the to the sale. 7th property) at December Street purchase rule requiring cash for since erroneously it “Cole calls The constable it was not the creditor. Subse Painter, on one occasion. St.” quently, attempted remedy Prudential Jack repeatedly at the testified bidder by giving defect General Finance Na purchasing the thought he was he check for February dated circum ples property. Under these Street 1972. This several months after the authority lacked the stances the constable *8 and after had sale Bazaman filed suit. sale property. The to sell the Cole Street The sum total of the above circumstances Supreme Court void. Our was therefore purchase is that price really the was never has stated: paid 1) jury properly since: the found that the debtor never received credit from Gen convey no sheriff could “. and,
eral Finance . . (T)he the sheriff re 2) never had except as he property such ceived cash other proper or credit from the ac
93 description sale, prior sell he cоuld was read aloud to and sold at execution state, it is or- sale. the record in such a had been With except such as he no other apparent to us that had no added) constable (Emphasis to dered sell.”
power convey anything. to This conclu- supported by is sion the fact that the Lindsay, 66 Tex. Pfeiffer & Co. parties present bidding apparently at the conclusion The (1886). S.W. (Painter and who and the con- testified property describes sheriff’s deed if the stable) Naples or both swore that Street levied on that which was other than Addition, Lot Del was Block Mar pass title. Straus sold, does not deed property property sold. The in contro- (Tex. Shamblin, versy was the The Cole Street ; dism’d) Civ.App. — Amarillo description ap- property of the Cole Street appel The Executions § Tex.Jur.2d pears once, in the notice exhibit and by obviously intent was say lants there subsequently surfaces in the constable’s description parties support the all to of deed. To hold that the constable still had disagree, We in the deed. constable’s power piece to sell a of which accom which irregularities all of the With is not judgment, described in the de- sale, no basis purported there is panied this execution, scribed in levy or return and of intention support presumption of a about he which testified that he sold a dif- in the description support the parties to piece ferent property, would be emas- has reason general The constable’s deed. culate the execution rules of our Rules of : as follows been stated Civil 621-656, Procedure. Rules T.R.C.P. voluntary . . . . is . . sale “When something presumed that be it will appellate An court will sustain the every conveyed, be and was intended to judgment of a trial if it is on court correct in aid indulged presumption will be any thеory applicable of law case. in- thereof; be presumption will but no Co., Refining Gulf Land Co. v. Atlantic sale, involuntary dulged in favor of an (1939). 134 Tex. sheriff, property, by of the debtor’s purported We hold the sale the con in- . does not because the debtor . . stable passed no and the sale was interest property must be tend a sale. So by properly set aside the trial court. sufficiently as to enable described what bidders at such sale know group of errors The second sold; being . . this reason the . For complained di appellants are all execution, no- levy and indorsed on the punitive damages question rected to the tice of sale thereunder must contain jury and the found trial descrip- description; sufficient and judgment. awarded its The found be tion in the cannot sheriff’s deed give that Painter failed to credit levy, it is in aid because looked to repossession for the dis in after bidders written posal of the Buick automobile Cadil had persons attending sale have not credit, mag arose lac wheels. This determining what the aid thereof judgment, in the total to the offered sale.” amount of further $950.00. maliciously found that in his Painter acted Crosby, Tex.Civ.App. Smith v. disposal mag evidеnce wheels. aff’d, Tex. (1893, S.W. malice, whole, sufficient taken as 10). 23 S.W. exemplary dam finding to authorize a $4,529.93 for Paint ages in the posted notices is amount Although one of on the give credit evidence, testimony proper er’s is no as what failure there *9 94 1973, Comment, e.). testified writ ref’d n. r. See 10 against Painter Woods. away (mag for an excellent (1972) he the collateral Hous.L.Rev. 131 gave
that compilation repossession. He of in this did cases area. wheels) after identify recipient. and would not testimony further that these
There was
jury
spe-
in
also found
answer to
they
value when
were
wheels had
sаlable
maliciously
cial issue that Painter
as
acted
given away
that a market for them
Abe
Bazaman when he broke into
jury
been found. The
could have
Cole
jury
Street
maliciously
finding that Painter acted
$1,500.00 exemplary
awarded Bazaman
complete
rights
disregard
with
of
damages. These issues
to Ba-
relate back
failing
in
allow credit on
original
zaman’s
alleged
suit which
that
determining
in
instructed
guilty
trespass
Painter was
of a tortious
damages
of
the amount
that:
when he
proper-
broke into the Cole Street
ty
changed
the locks. The
made
“exemplary damages means an amount
any
no findings
injuries
of
actual
to Baza-
you may
your
in
award
discretion
man as
trespass.
a result
Appellant
of
example
as a penalty
as
to others and
contends that
this award
in
cannot stand
by way
in
punishment
or
addition to
finding
absence of
of actual dam-
any
may
amount which
have been found
ages.
agree.
Supreme
We
Our
you
damages.
are
actual
You
fur-
Russell,
Fort Worth Elevators Co. v.
123
exem-
awarding
ther instructed that
128,
Tex.
70
S.W.2d 397
stated the
damages you may
plary
such el-
consider
rule:
compensation
ements as
inconven-
ience,
fees,
attorneys
expense
litiga-
“The rulе in
Texas
that exemplary
expenses
and other
not recoverable
tion
damages cannot be recovered unless the
damages.”
as actual
plaintiff
sustained
shown
have
ac-
tual
injury.
loss or
can
There
he no re-
repossesses
A mortgagee who
collateral as
covery
exemplary
damages in
ab-
responsibility
prop
sumes a
to care
sence
recovery
damages.”
actual
erty
and the debtor’s interest
to sale.
at
(Emphasis
Id.
409
added)
Gathright
This was not done. See
v. Rus
sell,
441 (Tex.Civ.App. Tyler Accord,
383 S.W.2d
Ltd.,
Hoffman v. French
394 S.
—
1964,
dism’d);
259,
Motor Finance Co. v. W.2d
262 (Tex.Civ.App. Corpus—
Wolff,
1065,
pus e.). Christi n. r. hold that We rule, some courts this state have used jury’s supported findings the evidence only the hold, first quote sentence of the and that the amount was not excessive nor effect, exemplary damages can be unreasonably apportioned to the actual if recovered there is evidence that actual damages sustained. The award is not so damages are regardless recoverable but large passion, prejudice, as to indicatе cor actually whether are recovered. See ruption, disregard the evidence. Texas Electric Linebery, Co. v. 333 S.W.2d Therefore, verdict must stand. Cohen, (Tex.Civ.App. Paso Tynberg n. v. 76 Tex. S.W. — El Sons, 315 (1890); h.); Skillern & Inc. v. Stew w. Corp. Pan American Petroleum art, Mitchell, S.W.2d (Tex.Civ.App.— (Tex.Civ. S.W.2d Fort Worth writ ref’d r. First e.); App. h.); Mabry n. Paso n. w. — El Security Roach, Bank Abbott, Trust & Co. (Tex.Civ. (Tex.Civ.App. App. e.). n. Ir writ ref’d r. — Dallas — Waco *10 announced, cases, judgment of the trial court we believe respective of these here reformed to the extent authority compels to follow weight us appellee Bazaman. by amount remitted Suprеme specific language of where, inas literally, and hold that Court is now herein reformed judgment recovery case, is an this there absence of affirmed. recov can be no damages; there of actual ery exemplary damages. Fort Worth Russell, A. supra; see 17
Elevators Co. au for other L.R.2d §§ Baza- $1,500.00 thorities. The award man be reversed. must judgment we have found that the
Since $1,500.00, it in the amount of excessive Appellants, al., et E. BLACKWELL accordingly that a remittitur ordered by in this such amount be filed Bazaman days following the an within 15 SCHOOL Court RURAL HIGH JONESBORO DISTRICT, Appellee. decision, whereupon nouncement of judgment Court will reform the No. 5356. trial court the amount of such remitti- Texas, Appeals of Court of Civil otherwise, judgment; tur and affirm the Waco. judgment re as to Bazaman will be July versed and remanded trial and for a new will then affirmed as be 440, T.R.C.P.; Woods. Rule Pa Southern Company Stanley,
cific (Tex.Civ.App. Corpus Christi n. r. — e.); McDonald v. Webb 510 (Tex.Civ.App.). points
All of error have been considered. of the trial is af- firmed on the condition of remittitur of exemplary damage award
Bazaman.
OPINION ON THE RE- FILING OF
MITTITUR This Court has suggested appellee $1,500.- Abe Bazaman remit the amount of 00 as set forth in original opinion. appellee, The said through attorneys, has filed a sug- remittitur the amount
gested opinion authorized in the Sudderth, Woodley Dudley, Keith & this Court. Comanche, appellants. Woodley,
Therefore, opin- Dunnam, Waco, Dunnam, accordance with the Dunnam & appellee. ion of this heretofore