*1 supply of facts failure to the statement reporter
there was motion filed to hold the contempt punish because him provide hearing his failure to the same. A reporter held thereon. The court held contempt and ordered confined until
such time as the statement of facts was done,
completed. Everything possible punitive powers even with the of this court imposed, the attempt was done in to obtain
a statement of facts. appears now that the condition of infir
mity reporter ability inhibits the
appellants complete to obtain the statement requested necessary
of facts to their appeal, at least within reasonable time.
By appellants of these reason circumstances judgment have moved that the case with cause reversed remanded trial court for a trial. the cir new Under
cumstances to have this done the entitle is appellants. County
ment of O’Neal v. Saba, San yet informa Austin not time tion). cause is reversed and the remanded for new trial. ENTERPRISES, INC., Appellant, SERVICE
TEXAS ELECTRIC COMPANY, Appellee.
No. 18264. Appeals Court Civil Worth. 8, May 1980. Rehearing Denied June 1980.
OPINION
MASSEY, Justice. Chief collection of debt This is a suit for Inc., Enterprises, allegedly owes Rimco (TESCO). Company Texas Electric Service receipt In the court denied RIMCO usury raised as an affirmative service and counterclaim, seeking to way of defense including usury, recover all principal, double the amount cancellation and fees. reasonable court, prevailed in a trial to the usury where RIMCO’s counterclaim was also found to be without merit and denied. appealed RIMCO has two error. The first states there in- finding sufficient evidence to electricity received the for complains which it was billed. The second of the denial of counterclaim. On appeal, has moved to dismiss the attacked, time, appeal and has for the first to sue or defend state. courts denied, TESCO’smotion to dismiss is the trial court is affirmed. ON MOTION TO DISMISS APPEAL appears record that from the corporate charter or about forfeited its March of its nonpayment tax, pursuant franchise to V.A.T.S. Title 122A, “Taxation-General”, 12.14(2), Pay Reports” “Failure and File Tax provides part, (Supp.1980). article Such follows: “Any right do busi- corporation whose ness forfeited be de- shall thus shall right any nied sue defend State, except a suit to court of this of au- forfeit the charter or certificate any thority corporation. In suit of such corporation on a cause of against such forfeiture, arising action such before affirmative relief shall be Scott, Brown, Herman, Dean & Miles right do business corporation unless its Broiles, Worth, appellant. for R. David Port provided shall revived as State Chapter.” in this Collins, Gooch, Munn & Cantey, Hanger, Worth, motion Hill, appel- Two issues are raised C. Forth Mark first deals with RIMCO’s to dismiss. The lee. state, right of access the courts of this unable to raise a suit that defense Bryan specifically has arise. v. Cleveland Sand & whether RIMCO appeal. Gravel prosecute any part of this ref’d), timing Beaumont said issue The second deals statute, adopted into predecessor of a can this motion whether TESCO raise *3 at present statute Art. Taxation-General defect at this whether it waived this time or (at change page 12.14 without material disability by RIMCO’s or defend fail- to sue 613): timely objection assert at ure to such an the of trial. corporation,
outset to a denies “[A]rt. right whose to business has been for- do Corporations creatures of stat are pay ... to fran- feited for failure defending privilege suing ute. The of in tax, any the right chise to affirmative upon corpora Texas courts is a conferred Texas, relief in the . courts of by tion its charter and state statute. The We do not understand our courts hold may corporate state also abolish a charter interpose corporation that such a cannot time, any subject guar at to constitutional purely negative a defense character process of like. antees and the Such an it, . against brought against a suit logically complete act would result in the plaintiff is still ... under [T]he corporation, of the the right destruction of of duty establishing the of his cause ac- legal entity, a or defend in state as sue tion, corporate may, and the defendant state, by It follows that if the abol proof negatives . offer which charter, destroy ishing corporate a supplied.) plaintiff’s (Emphasis case.” right corporation entity prose of a as an RIMCO received TESCO asserted that courts, cute or defend an action in the RIMCO lost at the trial service. denied and possesses power of restrict state lesser was court level. Insofar as TESCO of ing corporation’s right a to the use issue, relief in the lower court on only long discharges so its obli courts as it is bound to that decision for review state of gation by payment impropriety. required franchise Federal Crude taxes. on Co., usury of stands dif- 122 Tex. counterclaim Oil Co. v. Yount-Lee Oil footing. “interposing is not (1932). ferent RIMCO purely negative in character” but a defense pay Because RIMCO its fran- failed corporation seeking a is in fact defendant tax, right under chise its to do business its relief, contradiction to affirmative in direct and, corporate charter under was forfeited statute, by way its counterclaim. of right of access to the our statutes RIMCO’s corporation desires Where a is sued and extent, was barred. courts of an relief, it must do so obtain affirmative 122A, “Taxation-General”, (V.A.T.S. Title a in which it is neces- means of cross-action Tax”, 12.14, “Fail- “Franchise Ch. bring- sarily plaintiff, plaintiff and the (Supp. Pay Reports” Tax ure to and File original occupies position ing the suit 1980)). legislature could have a defendant. The raised Two have been error pro- purpose one such a putting had but varying degrees RIMCO in each seeks act; corpora- prevent vision in this to state access courts. thwarting purpose tion from first, liability all In the contests through legislature by means getting relief second, RIM- by the suit of In the TESCO. prohibited a cross-action which prosecu- in the seeks affirmative relief CO obtaining independent suit in from usury Are both tion of its counterclaim. Crude Oil plaintiff. which it was Federal pay RIMCO’s its fran- barred failure (52 60). p. supra, S.W.2d at chise tax? Therefore, counterclaim failure to have its corporation pay
A has failed to barred required thereby payments find itself made franchise tax its franchise tax does not a Taxation-General, charged corpo- lawful Art. 12.- imum rate under V.A.T.S. Thus, ration, being per and Bill Re- month. said “Forfeiture of Charter 1.5% disability (1969), Article view” unless violation of 5069- charges object timely De- 1.06, waived TESCO’s failure to Civil Statutes. Texas Revised the RIMCO ground forfeiture of seeks to recover all fendant this state. Nowhere right to do business in principal cancellation of usury, discuss in its motion to dismiss does TESCO the amount obligation, double RIMCO, of waiver. other issue attorney’s fee.” reasonable and a hand, that the failure TESCO to asserts opening its testimo- After TESCO closed to sue have attacked RIMCO’s ny proof of its reasonable with timely proper plea in abatement waived fees, proceeded with its evidence. complain. its to later discovered During the course thereof it was general It is the rule that order with Rule complied that RIMCO had not *4 sue an ob party’s to contest a denying under 185 the account oath. in jection plea be a abate must made permitted to add to its The court issue cannot ment in the following previously filed sworn answer urged appeal. time on Al for first allegations: Wilkerson, (Tex.Civ. len 1965, e.). writ n. r. App. ref’d — Austin DENIAL “SPECIFIC Bldg. More in Frazier v. Waco specifically, show “Defendant would that account 476, 132,
Ass’n., Tex.Civ.App. 134 25 61 S.W. plaintiff’s petition is not sworn to (Waco 1901, ref’d), the writ court stated just, owing, specifically: requirement pay to raise failure a fran occupy did “A. Defendant not abatement, timely plea chise a tax times, premises at all and was not these words: “The thereof, the elec- owner or tenant bring it and maintain the suit because had were not provided trical services paid its tax have been not franchise should defendant. too judgment, raised before and came late presented by agree pay when for a did not first the motion “B. Defendant charges new trial.” See also H. O. Wooten Grocer on Exhibit A. Smith, 161 Co. v. 945 S.W. charges illegal The late “C. 1913, writ). no Worth due.” not motion to dismiss is denied.
TESCO’s is 185 it obvi By reference Rule ous even with this additional matter that ON THE MERITS they pleadings were to the RIMCO added judgment. We affirm the deny it to to entitle allegations insufficient By the authorities the TESCO account. brought was under T.R. TESCO suit compliance amounts to 185, failure and was C.P. “Suit on Sworn Account” which TES- that the account on supplied in the form admission for or services material was correct. Airborne systematic of CO had declared current. A record electric Inc., TESCO, Marketing, 566 Freight Corp. v. charges, compiled kept by was CRB Therefore, (Tex.1978). no issue incorporated petition, supported by 573 into the S.W.2d validity the claim petition complied com- of fact as to the affidavit. TESCO’s Clark, 558, Rule. pletely provisions presented. Brown v. however, only gen- a response, (Tex.Civ.App. RIMCO filed 559-60 — Texarkana prima it “special pled writ). eral As defense” itself denial. a The sworn account denial, as to the follows: was true and addition facie that debt evidence it be for necessity not there was Texas Elec- would show that “Defendant evidence for mally admitted into TESCO’s Company tric has made unilateral Service so Airborne to have it treated. as “late entitlement charges which are characterized (at p. 575). Corp., supra, Freight the max- charges,” which are in excess of law, whereupon Considering appeal, that there RIMCO did we find justified in at- concluded that it would support evidence in of the demand appellate in the tempting get judgment a the suit on the account. It was not sworn of its entitlement. This court for total only sufficient is to be deemed uncon- but cross-point ap- sought it a obtain error, point tested. first con- act, peal. as was the trial Were we free evidence, tending that there was no or in- court, one judgment would be of refor- judg- sufficient evidence to mation, by which TESCO’s ment, is overruled. therefore be increased. point error asserts RIMCO’s second we have concluded error in the of its counterclaim for denial proper judgment would have though even a charge usury in that there was a interest represented by it is with been that rate, entitling thus excess of the lawful power grant court to out the of this under Title V.A.T.S. than was awarded the trial court be “Interest”, 5069-1.06, “Penalties”. perfect cause of failure to cross- charge” refers to a “late for $17.30 appeal. fur- nonpayment electricity for $576.67 A was Benton v. somewhat similar case 3-28-76 to 4-28-76 and anoth- nished from Taylor, (Tex.Civ.App.—El S.W. charge” nonpayment for er “late of $11.76 ref’d). Taylor There Paso electricity furnished from $392.00 Benton, sued Benton had filed cross-ac- (reflected by 6-15-76 4-28-76 to *5 against Taylor. tion in suit Trial was to peti- account of in Exhibit A to its TESCO jury, following which a was ren- account). tion in sworn party anything that neither recover dered Tex.Jur.2d, defendant from the other. From denial 64 “Words & Phras In appeal. Tay- Plaintiff perfected Benton an (1965), is the we notice that interest es” (bond perfect appeal an held to lor did not by by fixed compensation allowed law late). Tay- have been filed to Nevertheless use, for the forbear parties to a contract cross-appeal, and sought present lor his ance, that money or detention of and dismiss the same. The Benton moved to is defined as interest in excess of cross-appeal dis- Taylor court ordered the law. There must be by amount allowed missed. inter “interest” or there can be no usurious the “late
est. We think it obvious that
Harris,
(Tex.
Shirey
v.
court is without al., Appellants, perfected his grant appellee has unless relief cross-appeal. own In other words the cross- not be mere desired obtained Attorney CURRY, Tim Criminal District bearing there- point appeal. Cases al., Appellees. County, et Tarrant “Ap- Digest, at 3 upon annotated Tex. Error”, <3=395, peal of failure “Effect No. 18255. (1953). give security” or defects in Appeals Court of Civil 391, Davis, In Scull v. 434 S.W.2d 1968, n. Paso writ ref’d r. Worth. (Tex.Civ.App. — El authorities, e.), Judge Preslar considers 15, May 1980. Ewton, including Jackson v. (Tex.1967), points”, “points” “cross Rehearing Denied June 1980. their and function. His con definition points clusion was cross probably qualified
case be con some procedure sidered rules law and some did not. the court con precaution. sidered all in abundance all. overruled them Indemnity In Travelers Co. v. Pollard Friendly Ford 512 S.W.2d writ), (Tex.Civ.App. — Amarillo where the trial been the court with sought jury, out a cross- appeal of error to obtain on than the amount the trial court had award *6 Though cross-appeal
ed. there had been no the Amarillo court held existent the have the claim because of the considered
cross-points. ultimately the court appellee’s held without merit. claim be (In us, before we followed the case Amarillo we that our court would have held jurisdiction cross-points obtain
ed, appeal have awarded granted than was court.)
trial holding is conflict opinion In our with that the Amarillo court Travelers Indemnity. By ap- our construction of plicable and Rules of Procedure a law Civil
cross-point is no appellee, where there
cross-appeal, provide does not ability of an to seek greater re-
appellate court different and/or the trial lief than that af- firmed.