Schieffer v. Patterson
440 S.W.2d 124
Tex. App.
1969
Check Treatment

*1 statute, con- was, find- the the by is rendered; there ices terms no since them, of stock to clusive. in issuance ing of fraud We was authorized.

the not acts reply jury Appellees that the “found agree. fraud”, they not constitute but do the the any finding except to answer to “entered into the directors Whether a They authority for first issue. cite no agreement” without to have issued stock if was holding that the issuance of the stock finding consideration, absent a was defendants not fraudulent its sale issued, actually es- does not so stock actionable. is a basis action and tablish a cause of parties is 50,805 bulk of the briefs of all recovery judgment for misconduct, ques- is asserted devoted to appellants. There stock from shares of we not reach. do contrary, tions fraud. finding no On issue concern- a answer negative is Associates, Far-Pritt The action conduct, relating appellants’ ing malice rendered, Inc., as to which judgment charge in the being defined with “malice” action. from the remainder of the severed or motive”. including “bad evil parties except Far- Associates, Pritt Inc. is reversed C, 2.16, Texas Business Subd. Art. remanded. cause V.A.T.S., Act, provides that Corporation part, and rendered Reversed transaction, in the “In of fraud the absence part remanded. reversed and or of directors board be, shareholders, may toas as the case received value of consideration After shall be shares conclusive”. question a resolution stock in was issued meeting by adopted stockholders’ 84,445 12,039against

vote of shares for to de fact that reciting that in view of Larry SCHIEFFER, Appellant, R. corporation had worked for fendants years cash for over four without salaries pay M. K. “except about $1300 Jack Joy vir, Appellees. PATTERSON et C. son, 17,085 Pritchett and shares Paul 11619. No. 17,510 company, Taylor shares to Ed said Appeals time that at of Civil

and in view of fact par it was of the said stock was so issued Austin. share, per had market value of but $1.00 April value”; “does corporation that since the have, and never had sufficient not now has pay for the

cash reasonable value them”, defendants and since

work done payment for cash

had claim for waived done, de

work the issuance of stock to validated, con

fendants was ratified ánd

firmed. conclusively defend-

The evidence shows

ants performed and contributed services the corporation.

“labor done” Without fraud, consequently, deter-

establishing defendants’ serv-

mination value of

Byrd, Davis, Clark, L. Ton- Eisenberg & nett Byrd, Davis, Davis, Tom H. Don L. appellees. for

PHILLIPS, Chief Justice. damages personal

This is a for for suit injury incurred in automobile collision. citation, Although duly served with defendant in the court below failed to file hearing an answer. After evidence damages plain- sustained tiffs, judg- the trial court default entered against ment defendant. Thereafter defendant a motion filed judgment by default and asked for a new trial.

Following hearing ón defendant’s mo- tion, the court entered an order over- ruling defendant’s aside motion to set “except default and for new trial insofar as it asks for a trial on is- granted damages” sue of defendant only. An damage trial on the issues defend- granting order was then entered damage issues ant’s motion sever and the issues in the case from appealed. defendant want this We dismissed for however, jurisdiction, 430 S.W.2d judgment of reversed our the cause to and remanded dismissal merits, 433 on its Court for consideration S.W.2d 418.

Brown, Erwin, Barber, on seven Maroney Will this Court Appellant & is before Barber, Austin, points appellant. G. for sustain error.1 We points of whatsoever POINT OF ERROR 1: or omission since no act rendering judg alleged could in which court erred default therein defendant negligence; ment, allegations plain ER- POINT OF in because the constitute original petition ren- in trial court erred tiffs’ are not sufficient ROR 3: any amount, support judgment, dering in a default since no default allegation plain- alleged is no facts or are circumstances therein plaintiff original petition Mrs. found which it could be that de tiffs’ injuries duty personal na- or the breached whatsoever fendant Patterson’s might plaintiffs extent, ture, result- he duration thereof which have owed or damages plaintiffs; ing OF POINT connection with whatever act or omis neg ren- erred in The trial court sion of the defendant is claimed as ERROR 4: $58,948.55, ligence; dering POINT ERROR 2: The OF default orig- allegations plaintiffs’ because the court erred support judgment, allegations petition could in no event inal substantially original plaintiffs’ petition in excess are not suf a $500.00; judgment, support 5: ERROR POINT OF ficient a default negligence. go appellant’s part

error one claimed through seven nature, insufficiency appellees’ (plaintiffs allegation basic There in below) petition support personal the default extent or duration of There question. appellee Joy of an- Patterson. juries view C. prayer to the allegation other trial we need not discuss is no amount *3 by eight. appellees damages error number sustained of juris it than “will exceed minimum is- appellees’ petition of in dictional limits” the trial court. White of sue here reads as follows: Jackson, (Tex.Civ.App. v. 358 S.W.2d 174 1962, Waco, e.); r. writ ref. n. White Loden, 863 Company Motor 373 S.W.2d “2. 1963, writ); no Stin (Tex.Civ.App. Dallas necessary bring this “It has to become Jones, 212 (Tex.Civ. 434 son v. S.W.2d collision suit because of an automobile 1968, App. writ). Beaumont no 1966, 21, approximately on November Joy C. that occasion 8:45 A.M. On Appellees upon this Court urged have driving a Rambler Patterson was 1965 a language supporting default certain driving a Mus- and defendant was 1966 opinion Supreme in the Court of in- tang. occurred at the The collision Johnson, 158 Tex. Feed Mill v. Edwards Penny and tersection Briarwood of 313, The default (1958). 311 S.W.2d col- said Streets appealed but judgment in was not Edwards negli- by one or lision more was caused being years was attacked two later as void. part of gent acts and omissions on at bar is no in the case There contention defendant, property it resulted that judgment that is void but damages plaintiffs and serious both to is insuffi- petition upon which it is based personal injuries Joy Patterson. to cient, re- money judgment cannot Consequently, appeal was sult therefrom. “3. duly perfected alleging the error com- here plained of. injuries personal of the “As a result plain- by property damages sustained overruling de- trial court’s order tiffs, damages exceed their total will appellant’s amended motion set fendant to jurisdictional limits of the minimum by for new judgment aside default and Court.” respect liability issues is here- with appel- allegations in We hold that by this cause is remanded reversed and petition are insufficient original lees’ the trial to set court with instructions There is no support judgment. entirety default its judgment aside default any duty showing fact any allegation of grant appellant a trial on re- by appellant appellees with owed issues. ap- on act or omission spect whatever instruc- and remanded with There Reversed negligence. pellant’s part claimed on tions. or omission act allegation original plaintiffs’ judgment, rendering the default erred in trial court petition sufficient $58,948.55, plain- forth does not set for constituting give their original petition circumstances de- facts and did tiffs’ give no- plain- defendant fair of action to cause to the nature of fendant notice as claim; sought POINT for their re- of the basis relief tice claim and the tiffs’ erred quired The trial court ERROR 7: Amendment of OF Fourteenth States, rendering the default of the Xbuted the Constitution merely alleged plaintiffs 1, $58,948.55, required by since Article Section and as also damages exceeded their total of the State the Constitution jurisdictional limit Texas; minimum 6: The OF ERROR POINT court. erred court HUGHES, (concurring). ed motion de- Justice be, fault and for new trial and the same opinion we held that the previous our overruled, hereby, except insofar damage is- severing trial court erred in it asks for a new trial on the issue liability issues, sues from the cause damages, and hereby the defendant is being an indivisible cause action asserted granted a on the issue dam- In reversing of action. action in dis- our ages only. appeal missing ground on that no rendered, To had been and ruling action Supreme quoted prior opin- from its court open defendant then and there excepted ion to the effect that an order and gave erroneous court notice of appeal. Appeals could be aside set on Court of severance Civil Third District of Tex- Judicial *4 aside the erroneous order of set I would as, sitting severance in this case and and re- reverse Signed and ordered entered this 1st ground If mand on decide that alone. we day February, of 1968.” the questions raised then would be er- nothing judges to deter from Appellant’s motion sever made was not roneously trying piecemeal cases because 29, February until they accomplish would the desired result regardless they may splin- appears No order of severance how have the transcript, tered an the indivisible cause of action. unless above order be so considered. It very doubtful to me seems position solely I do not take or even that this is a severance order. Mc See primarily appellate courts could 319, Bracewell, Kellar v. 437 Tex. S.W.2d be multiple appeals growing flooded with Civ.App. Houston (1st) 1969. single out of a cause of but action the delay expense multiple and appeals reversing upon In us Court relied injustice would cause litigants who could Reynolds, opinion its in Pierce v. 160 Tex. delay afford neither the to nor 198, incident 329 S.W.2d 76. In that case the trial cost multiple appeals. judgment rendered that as to certain court plaintiff nothing. items sued for that take I only concur order of reversal certainly disposition a final of a This was and remand. part controversy. A better to this solution would case be on this All of the cases cited Pierce Court to reconsider and import. are of similar opinion overrule its reversing judgment of this Court. Skelly Company, In Carter 317 v. Oil 227, Waco, Tex.Civ.App. no writ S.W.2d appealed order reads: from nothing appeal a take (1958) 1968, 1st day February,

“On this judgment as to a of a cause of ac- cause, styled and above numbered tion. court, pending in the above mentioned Smith, v. 244 In Associated Growers S. came to be on heard the defendant’s 348, Antonio, Man Tex.Civ.App. W.2d San amended judgment motion (1951) damus was a case which trial, default and for and the separate claims court certain severed Court having read such and motion heard certain and that as to rendered and argu- considered evidence and nothing that as plaintiff take counts counsel, opinion is that money plaintiff to other recover counts the following order should entered. be on which the damages and that other counts ORDERED, agree ADJUDGED, It is AND be severed. could not proper, procedure DECREED that the amend- held this defendant’s pleadings. has final claim made It none judgments that rendered were finality. is the attributes of judgments. It not execution, ripe for for costs. even Rule Co., & Sons A. Tebbe Thompson v. J. 149, T.R.C.P. Paso, Tex.Civ.App. 633, El 241 S.W.2d Smith, supra, (1951) no writ was similar Pierce, supra, the Court stated that money judgment court adjudicates fully “A one ” certain severing * * on certain counts appealable. severed causes is then un- as which he was other counts fully adjudicate not This does able to hear evidence. any cause. 176, 9 Hulsey, Tex. S.W. In Boone It grants part. It a new trial trespass to in a Court held lies from an fundamental defendants each try title case where granting new trial. This order leaves land sued part of the separate claimed a standing only order an inter- granting and more granted be severance could locutory judgment. See authorities rendered. than one opinion. An inter- cited our former locutory appealable unless judgment is not do sustain these cases I submit authority. statutory specific there is or rule in this case. the Court’s ruling provided inter- authority such as to No *5 taken ment from which locutory judgments. in the cases cry judgments a far from the finally ad- those cases cited. Each of unrepealed. It Art. V.A.C.S. is invalidity validity judicated the appeals judgments authorizes Nothing left be determined claim. only. repealed it accorded Until should be effect. Each such as to its extent or respect. ripe for execution. This judgments was indicated only I concur to the extent It judgment here. does not true of the single herein. settle all or