*1 329. sup- enforcing trict Court for assistance in court’s the Illinois port Court, original decree. The Texas and a modi- District fying decree, comply contempt held Martinez in for failure to support provisions with the judgment mentioned above suspended judgment but Mar- condition that Antonio pay up 1959, tinez support payments. arrears in his Later Guadalupe P. Martinez which she stated filed an affidavit in payments. that Martinez was his some in arrears with $300.00 prayed why She that he cited to cause he should not show held contempt of court. copies by duly plead- These facts are disclosed certified
ings and records in the District office of the Clerk Cameron County.
Martinez has application filed in his this Court sworn corpus, stating writ of liberty habeas that he is restrained his and has jail been County committed to the common of Cameron upon an judge. oral order of the The record before us fails to show written order of commitment.
It is
Court,
well settled
the decisions of this
as well as
those of
Appeals,
the Court
person may
of Criminal
that a
not be
imprisoned
contempt
without a written order of commit
parte
Ex
Puckitt,
438,
ment.
597;
159 Texas
322
2d
Ex
S.W.
parte Arapis,
627,
884;
parte
157 Texas
Smart,
306
2d
Ex
S.W.
229,
parte
398;
152 Texas
Palmateer,
256
2d
Ex
S.W.
97,
160;
parte Eager,
243
2d
Ex
S.W.
Texas
128
Crim.
136;
parte Ray,
709;
2d
Ex
S.W.
101 Texas Crim.
276 S.W.
parte
Ex
Alderete,
Crim.
Opinion January 27, delivered 1960. George
Southern Pacific A. Porter. January No. A-7191. 1960. Decided February Rehearing Overruled (331 42) Series *2 Sutton, Boyce, A. Undenvood, Wilson, Heare and B. Wil- & petitioner. son, Amarillo overruling failing Appeals erred of Civil
The Court that “the defense of re- .petitioner’s of error to sustain jurisdictions permitted, is avail- were those coupment, even limitation, and plea failure against a only as defendant’s able his contract makes notice which give, the written condition recoupment.” East recovery the defense of bars 417; States, Freight Fed. 2d Texas Motor Lines v. United 504; Cantrell, 47 N.M. 11 Am. Jur. Bank v. State National 1216; Davis 127 143 Pac. 2d Morriss-Buick Co. v. 152 A.L.R. Gibson, Ochsner, Harlan, Kinney Gib- Morris and Wm. W. & son, Jr., Amarillo, respondent. opinion delivered the of the Court.
Mr. Justice Norvell Appeals The Court of matter of “federal law” held as a shipper’s negligent handling that a claim for for the against cattle in transit could be offset as freight charges. carrier’s claim for 2d 810. The case Pennsylvania Miller, Cir., Railroad 5th 124 F. *3 denied, writ of certiorari 316 U.S. 62 S. Ct. holding. L. upon supporting ed. 1750 was relied as present shipment The action involved an interstate of 290 Kinsey, Centro, head of cattle from Montana to El California under the terms of the Uniform Live Contract which con- Stock following provision: tained the a “As recovery, condition claims must be filed writing in issuing receiving delivering carrier, with the or or carrier lading,
this bill of loss, or carrier on whose line the damage, injury delay occurred, or within nine months after delivery property (or, export traffic, in case of within nine delivery port or, months after export) at of in case of a delivery, failure to make then within nine after a months reason- delivery elapsed; able time for has and suits shall be instituted against any only years day carrier within two and one from the day writing given when notice in the carrier claim- any ant that the parts carrier has disallowed the claim or specified thereof in the notice. claims not filed or Where suits foregoing are not pro- instituted thereon in accordance with the visions, liable, no carrier hereunder shall be and such claims will paid.” not be stipulated
It was that the carrier entitled was to recover as prayed petition, except right recovery might for in its as its shipper’s pleaded theory defeated damage that notice of claim for no written to cattle was filed period specified with the carrier within the nine month’s in the recoupment shipping The trial court contract. allowed de- judgment Ap- and its was affirmed fense peals. Pennsylvania Railroad Miller or simi- Co. v. an identical lading
lar covering to that clause above set out was contained in bill damaged onions, allegedly in transit. As three cars right damages against shipper’s carrier’s to the to offset such freight charges, judges opinion de- difference of between Judges (1) veloped. the time limit Holmes and held McCord lading (2) provisions and clauses in the bill of were limitation long freight outstanding as the for so was claim was damages onions. to the based Judge Hutcheson, dissenting, said: claim,
“I think it clear that defendant’s counter freight negligence handling shipment on which due, sued for was not to it. It was not available was available because, (1) by 2(b) the last sentence of bill Sec. lading, are not instituted ‘where claims are not filed or suits foregoing provisions, no carrier with the thereon accordance paid,’ shall not hereunder shall be liable such claims extinguished, extinguished, (2) if it was not the claim was Texas, only was, as a coun- it under rule in available the settled by way and was therefore and not ter claim by limitation when asserted.” case, it of both the ma- As we read the Miller view dissenting question “recoup- judge that jority and the and not federal law. ment” was a matter controlled Judge majority position was stated Holmes was follows: *4 an case lies in the distinction between of this crux “The interposed a in reduc- relief and defense action affirmative plaintiff’s extinguishment of action. The cited of cause
tion or lading a the time within is limitation of portion of the bill instituted, recovery may of be the claims enforce to suits which recovery of an action for period existence of the limits and against a carrier, not a limitation defense is but the up Appellee’s answer set the suffered recoupment. loss way of carrier, sought negligence he the but no of the of by reason challenged rather, therefor; the of the carrier he damages recover from him on the cause good to conscience and equity in alleged. of action law, derived from the was civil of doctrine “The the common law. Under it a de- a of adopted as was and claim, way deduction, just of all allow- to entitled is fendant accruing respect him in of the same trans- to demands ances a set-off ground is not This action that the of the action. forms sense, in the nature it is not or counterclaim in the strict because recovery any demand, it or defeats of a cross by but rather lessens claim, and goes plaintiff’s plaintiff. It to the existence Being common law part a is limited to amount thereof. adopted England expressly State it in in made, has existed since and Texas where contract was unimpaired form in that state.” Judge dissenting opinion said:
In Hutcheson his “But, provision not this, does if I am mistaken in and the extinguish period limitation liability merely a fixes but majority brought, opinion within suits can which governs, Texas, de- is no in and Texas law better based. For damages plaintiff’s to suit fendant’s claim for is not defense recoupment, up by way a counter claim to be set but on, support affirmatively such, of its sued and as it barred. recoup- view, that defendant’s claim for is available claim, majority ment rather than as a counter cites Federal jurisdictions, from other and construed cases cases its therewith. With Texas cases cited below as not general conflict applicable no statement of the elsewhere I have law controlling, quarrel, and as announced but the law Davis, highest state, by the court of this in Morris-Buick Co. v. is, think, exactly I to the 127 Texas it reject- contrary majority expressly takes. There of the view the ing jurisdictions, the courts other the cited decisions of * * * regu- intent of our remedial statutes court declared: ‘The set-off, lating subject is such counter-claim remedy that same has ex- to the extent been place jurisdictions, has no in the panded applied in some this state that where jurisprudence this state. It is the law of interposed by the defendant con- subject of defense matter go independent does not to the cause of action which an stitutes demand, effect a plaintiff’s it cannot reduction foundation of recovery except by way plaintiff’s of set- amount of the of the off, plaintiff are available to the statutes of limitation and the Co., Antonio Traction respect such defense. Nelson San hand, subject- if the 434. On other nature, intrinsically defensive defense be of matter of the which, *5 negation merely effect, operate as of the given will if abatement, recover, either or to plaintiff’s asserted claimed, the limi- statute of the amount wholly partially, of or (Texas App.), Com. Peterson apply. Mason v. not tation does ” 250 142.’ S.W. 334
1 The Miller case saying seems to afford no basis for that recoupment decision as to common law is an Act based Congress regulation. legally adopted some other federal general “There is no Congress federal power has common law. no to declare applicable substantive rules common in a law state they ‘general,’ whether be local in they their nature or com- mercial or a law law of no torts. And clause in the purports constitution power such a confer the federal 64, courts.” Erie Tompkins, Railroad v. 304 U.S. 58 817, 1188, 82 L. 1487; 630, S. Ct. ed. 114 A.L.R. 15 C.J.S. Com- Law, question mon section 16. The then our decision is majority expressed whether the or the in Miller dissent the cor- recoupment rect view of common law in as it exists Texas. And regard applicable being is true whether we law as that place where place was contract made or that of the brought. (As where the suit was see, question, to the conflict laws 502, 189, 190.) Miller, 11 Am. Jur. sections the contract brought was made in Texas and suit was in Texas. In the case us, now essentially Although before is situation same. appears it tana, that was executed in the State of Mon-
Porter did not assert that matter of should contractus, be determined the law as of Montana the lex loci nor did he claim that of Montana law on dif- Accordingly, they ferent presume from of Texas. we Schaefer, Civ, App., identical. Milner v. Texas 211 S.W. 2d 600, wr. ref. question
2 The of common law is to Texas determined in accordance with the decisions of this Court. colony territory Texas never was a British nor an American by adoption us the common law comes to rather than in- heritance, Congressional speak. January 20, so to Act 1840, 177, Laws, 1, p. 2 Gammel’s Article Ann. Vernon’s Stats., simply England, makes the common law of so far as it legislative enactments, consistent with our constitutional and English adopted, the rule of decision in Texas. No statutes were Ball, 10, 15, although Paul v. 31 Texas Texas was an inde- 1840, Congress pendent republic in year the Act of the of that referring applied to the law not construed common England English but rather common law as de- courts of the states clared Grigsby various of the United States. Reib, 105 Texas v. L.R.A. 1915E also, 1, Ann 1915C 1011. See Clarendon Land I. A. Cas. Co. v. Bros., 576, 1100, 86 Texas McClelland L.R.A. Heath, 105; Lake Diversion Club S.W. 2d origin unique is somewhat law of Texas 441. The common
335 general the respects all with development has not in coincided its throughout other American course of evolution discernable may control be, Texas decisions states. However resopndent’s holdings a point fatal this case and these in Texas recoupment. scope asserted The narrow Peterson, App., by Texas Com. is illustrated of Mason v. case Supreme It must 142, holdings approved by the Court. a either predicated upon contract a factor which would vitiate The was made. in whole or in as of time clearly a counter by present case claim asserted Porter Davis, holding 127 claim under the 41, of Morris-Buick Co. v. limita- time
91 2d 313 and under the contractual S.W. set Live Contract. tions forth the Uniform Stock Ap- judgments and the Court of Civil The trial court judgment peals and here rendered for Southern are reversed against George the sum A. Porter for Pacific together prayed petition, interest $4,319.50 as for with judg- April (the trial court’s thereon from ment) 1958 date of the per per annum. paid the rate six centum until at Reversed and rendered. January
Opinion delivered 6. 1960. Culver, joined by Mr. Justices Smith Green- Justice dissenting. hill presented by a suit question
The of law here is whether in freight charges petitioner-Railway Company, to recover connecting shipment interstate carriers from Mon- of cattle may California, respondent-shipper interpose de- tana to fensively although way a claim was barred if as a setoff or counterclaim claim asserted shipper question resolved in favor of the limitations. This Appeals. by the Civil the trial court and affirmed Court 319 2d 810. Railway Company Miller, Pennsylvania case denied)1 appears only (writ to be the of certiorari
F. 2d 160 precise question has That de- been considered. wherein one affirming judgment a from the Eastern cision the 5th Circuit controlling regard and on that basis Texas I District of Appeals. agree formed the conclusion with 1 —316 U.S. 86 L. Ed. S.C. question petitioner contends, first,
On this the de- jurisdictions fense of permitted, even in those where only against plea respondent’s available limitation give failure to the written notice which the contract makes *7 recovery recoupment. condition of bars the defense Second, by respondent that whether the matters relied on can be by way recoupment by asserted as a defense is determined the state rather than law the federal law and that under the law recoupment the did not in defense exist this instance. argue propo-
Petitioners that the Miller case stands the determining sition that the law of the forum must be followed plea whether not the recoupment per- or defensive will be permitted recoup- mitted but that while the that Court case interposed ment to be it misconstrued the Texas law. Petitioner points dissenting opinion predicated disagree- out the that its phase upon Davis, ment on that of the case Morris-Buick Co. v. 41, 313, where we “The said: intent of our (Articles regulating 2015-2017), remedial subject statutes the setoff, remedy and such that recoup- counterclaim is ment, expanded applied to the extent that has been same jurisdictions, place jurisprudence some has no in the of this pronouncement not state.” and has been overruled or That modified represents the law in Texas it exists and at the time of premise petitioner the Miller decision. On concludes that incorrectly the Miller case was decided and different result should here. obtain regardless is Now of what said in the dissent about controlling, quite majority it is evident
Texas law that having decision, expressly well the Miller-Buick aware of cited majority opinion. this, it in their held amounts to What that recognized is as a of the law common that was adopted by by of Texas and State most of the other states presently and based their decision not on law of Texas as it plea rather affects a but the common law by generally adopted states, principles Texas and the other by accepted and as and enforced federal courts. Pursuant Amendment, (U.S.C.A., Title the Carmack Sec. #11), legislation is no remedial state effective. Supreme denying writ of certiorari must have light spite expressed of and in views
done so in the in the dissent. of federal taxation the defense of recoupment field
In the recognized though expressly has the claim would been even have independent been suit or barred if asserted as an counterclaim reason, said, is setoff for the it is arising nature of a out of some of the transac- defense feature plaintiff’s grounded. tion action The federal which the is defensively courts that the is not hold claim asserted long timely the statute limitations action so as the main brought. States, L. Bull v. United 79 Ed. 142. U.S. petitioner quotes Jurisprudence, from American Vol. Laws, Conflict is said Section where it
weight authority the law of setoff and reme- counterclaim is dial substantive, impressed in its nature rather than we are but contrary respondent sup- contention asserted ported by preceding section 189 to effect that defensive generally regarded matters are as substantive rather than re- Recoupment solely medial lex fori. not controlled de- *8 fensive in its function. regardless Thus I am convinced that local law a federal
question is here raised and the courts decisions of federal control. only pointed factual distinction out between the case Pennsylvania Miller,
at bar and is that in the latter case notice timely of the loss shipper filed and disallowed carrier, given by in our shipper while case no notice was at any authority time. No cited on this of distinction and we think bearing that the failure to file notice would have no on right appellee present defensively of the to his claim nor shipper the failure of the filed to have written notice contrary holding claim would have resulted in a in that case. shipment of the Under the terms contract written notice damage loss or was to filed within be nine months after de- livery years within suit two after be followed disallowance of the covery. and these conditions claim were both to re- barred as a claim be setoff reason of the Whether give timely failure to notice claim or as- failure to period 2-year as a setoff within the sert the claim would seem far as the make so assert the to fensively by no difference claim de- way is concerned. In either instance as a matter of affirmative the claim would relief. The provides in evidence here uniform livestock follows:
“* * * not filed or suits are not claims instituted Where foregoing provisions, carrier no
thereon in accordance with paid.” liable, hereunder claim will not shall be such holding of the respectfully I from the therefore dissent majority.
Opinion January delivered Rehearing February 3, 1960. overruled Royden, of Laura Estate Slavens Guardian June Stanley Ardoin. v. U. S. Wood January 13, 1960. No. A-7477. Decided
Rehearing February 10, 1960. Overruled (331 206) 2d Series *9 Joyce Fox, Cox, Fountain, & Cox and Frank G. Gaines Houston, petitioner. III, Evans holding Appeals erred the con- attorney-client did not establish rela- tingent fee respondent petitioner’s aunt, and that the tionship between