*1 pu'r-, perform the' degree any' be able to 9Originally man poses it wa for which jury. ufactured, for the was a matters' involve points of error
Further trial. likely occur on another stated,
However, grounds hereinabove lemanded to the reversed and
the cause is disposition of issues in ac court for controlling au herewith
cordance Co.
thority
International-G.
R.
N.
Tex.Com.App.,
, remanded with instruc- Reversed
tions. al. CO. et FINANCE
WRIGHT
No. 14737. Appeals of Texas. of Civil
Dallas.
March 1954. Feb. Dismiss Overruled
Motion to April
Rehearing Denied *2 Fritz; appellant. Dallas,.for
Edward C. Lea, Houston, Mays & B. H. B. Alto iCervin, Barron, Jr., Ed W. S. C. Stearns Dallas, Hardy, Gay, D. Coleman R. Austin, curiae, appellees. amicus CRAMER, Justice. Roy Wright
This action filed E. individually Moore, Jr., against W. Lee and as administrator Estate W. deceased, partners; Moore, Sr., Lee under Rule Vernon’s. Texas Rules Procedure, against General Finance Civil Co., Co., E-Z Finance Texas State Finance Company Loans, Co., being un- Acme companies partnerships incorporated Moores; operated by against Citi- unincorporated, Co., zens Service owned Luther, by Paul and Reserve Loan un- incorporated, Luther, owned A. B. Mrs. Luthers, individually, against each of the operates L against Ware who V. business in own name. small loan shows connection pleading no direct Moores and or the Luthers between operated Companies each than they conspired alleged that is. on loans charge usurious interest Wright n madeto except Ware, all, him and injure conspiracy Wright in a persistent harsh and collection the use pleadings assert two causes methods. pen- action, statutory action —one n interest collected from usurious alties damages actual and other for Wright; anguish and conse- for mental exemplary therefrom, Wright inten- quent physical suffering total and’ against Ware $403.67 wantonly, maliciously inflicted tionally, a total against the Luthers $197.40 persistent Service; Wright and his wife Reserve Loan a total d/b/a against each harassing communications the Luthers Citizens- d/b/a *3 Co.; efforts appellees Ware) all in their Service a (except against total of General $57 only Loans, Moore, for usuri- Finance Jr., to was sued collect. Ware and his father’s- estate; a penalties. against ous total E-Z Finance of $19 estate; Co., Moore, Jr., and his father’s motions of court overruled The trial denied all parties; other relief all to and: pro- parties sever, case and the various n n taxed Wright the costs and de parties as to and after ceeded to all trial fendants. Motion having, for new trial trial court directed hearing all evidence overruled, duly perfected been Wright this* Health & a in favor of verdict Bankers appeal 1. Company, motions overruled other Accident Appellant Wright points briefs five jury on and cause some submitted the from, error, in (1) In substance: striking special sum- which will not be issues judgment damages phys- for mental and necessary except marized those herein suffering; (2) ical in failing error ren- pass questions raised this on the judgment der exemplary for damages- individually representa- and in his Moore awarded jury; (3) failing, error in operated companies capacity tive for least judgment to at render for the exem- him father made a motion and his deceased plary damages remitted;. not ordered to be subject judgment verdict, on the and for (4) error in failing to render judgment disregard moved thereto against appellees Loans, General Finance jury findings judgment and enter for Company E-Z Moore,. Finance and W. Lee Such each of motions were over- them. Jr., for usury double for damage instead of reserved, ruled, exceptions trial and the damages; single (5) charging- and error in court, suggested a remittitur was de- Wright. of the costs to ½ clined, judgment verdict rendered $403.67; Against as Ware for follows: counter-points Luthers’ three in- are against Luthers and Loan Reserve (1-2) substance: Error in dismissing- $1,358.12; against for the Luthers Service cause for the (1) this reason that Wright’s- $1,366.90; and Citizens Co. for Service petition misjoinder its face shows a against Finance and 'General Loans W. Lee parties action, (2) and causes of and individually independent Jr., and as Moore, only causes, any, alleged if are unrelated jointly $1,150; executor, etc., against for statutory usury for penalties acts Loans, and the Moore, Jr., General Finance amounts below the district juris- court’s Moore, $1,150plus for Estate on a Sr., $57 diction; (3) error in rendering judgment, pleading; against in the count second usury for amount because evi- Moore, and his father’s Finance Co. Jr. appel- dence shows that in each transaction plus count; $1,150 on a second estate for appellant’s acting only agent- lees were as Company against Moore, Loans, Acme Jr. procuring a from another party loan not. $1,150; against and his father’s estate joined in this suit. Co., Moore, Jr., and State Texas Points and 3 to- considered $1,150; estate and denied father’s questions gether. They Wright’s- involve recovery on his cross-action. Ware a right exemplary recover actual and dam- judgment new ages right On motion for trial of the trial re- this court to Peurifoy was, by Judge who succeeded duce the amount his- verdict over judge, protest Dixon the trial aside and Judge (Wright’s) and refusal to remit. set judgment awarding right new entered Wright contends that actual* separate perfected reply 1. Ware briefs the Luthers rate have separate points. here as a cause. filed record brief filed cross their three sepa The Moores and Luthers have filed personal injury suffering well as mental exemplary damages exists exempla- recovery may absent results thereon be had for court must enter ry words, exemplary loans damages. Appellees made who remittitur. counter- a re- damages each in be the basis of course contrary covery for result suffering view. mental as a points take the injury, also following physical but damages found jury by its verdict where the mental thereafter or condition appellees separately against each of physical as a mani- thereof results in mental following amounts for injury. festations and past and pain suffering in the emotional physical $700; Kimball, Wright’s In Hill in the future 76 Tex. S.W. *4 $50; Wright’s 59, speak- Supreme for Mrs. illness in the future 7 L.R.A. our Court $40; Wright’s ing for through of time from work on this loss Chief Gaines Justice suffering pain point mental and emotional stated: Wright’s physical illness $350; Mrs. for very “After careful consideration of $3,000; exemplary Wright $10; damages to petition, opinion we are that its $2,000: exemplary damages Wright to Mrs. allegations We show cause action. $6,150 each against or a total precedent have found no exact for such an owners, their trade-name defendants and action, why that is reason but no sufficient defendants, $36,900. totaling the six as to an action should not That a be sustained. personal physical injury may produced be damages exists right The through strong emotion of the there mind necessary sustain them when facts can be no doubt. The fact that it is more by exist are shown the evidence in produce injury through difficult such an Appellees rely opinion of record. operation by of the mind than direct E-Z Supreme in Harned v. our physical ground means affords no sufficient Finance S.W.2d 81. The compensation, refusing in an action at Harned was “for there held that the action law, injury intentionally when the is or recovery suffering; can be no mental there negligently inflicted. It be more diffi- suffering mental there is no where prove cult to the connection between the physical injury, injury property, no no alleged injury, cause and the but if it can damage, and no other element of actual proximate proved, injury be independent (2) which tort. The Courts cause, say result of the we cannot that a recovery cre allow in similar cases have recovery should not be had.” (3) ated a new tort. Texas cases do not support (4) case, by the action. collection or Hill Kimball The as shown The attempted Citations, Shepard’s collection of usurious interest Texas followed cases, (5) a crime nor a tort. Public distinguished is neither in innumerable but it policy against opening questioned the door to such has never been or overruled. claims; suffering Noteworthy mental too hard here is an article on that case establish; Review, litigation page fictitious and trivial in 12 Texas Law 1. The gives (6) physical would follow. The common law evidence here raises the issue of remedy, provided if injury no one is to be after and from resulting mental Legislature.” Quota must be done excitement caused the acts of the several Review, p. companies agents tion 31 Texas Law and owners of the in- is from opinion, therefore,
volved here. In our Co., supra, Harned v. relied Appellant here that our asserts clearly appellees, distinguishable present distinguishing case has two features case, phys- in that here there inapplicable from this make Harned case injury physical as a direct result of the mental as well as ical here. Here there appellees’ acts; brought appellee condition about from the acts of mental results in the last Too, Texas, the trial court Company. the rule in Loan exemplary law, ignoring damage is that where erred the common taken from , 606 appellant. of a It is well settled that the debts remittitur
issue, absent a partnership members of joint are as to all have been judgment should exemplary partnership, as to severable verdict on also full amount Partner new each of and a them. damages set aside Tex.Jur. ships, sec. 87. . granted. however, holding, Notwithstanding above partner liability surviving of a the trial court opinion that are of the we punitive tort action damages for the in a for the balance judgment, rendering is stated in the cases to be the same remit- have remained which should liability agent principal’s for the acts of acceptable titur, remittitur had been if such relationship applicable under rules that the trial court appellant, discloses C.J.S., principal agent. Part n wasof the inwas a remittitur only if nership, 168, is liable page § :' order. participated knowledge he had of and such wrongful conduct or ratified conduct. here the record We have examined 125,page Damages, § C.J.S. n and are of matters reference to such the' verdict is opinion that the amount of *5 prin The rule in Texas is that the $4,500 each of excessive in the sum cipal exemplary damages grow is liable for exemplary damage awards $5,000 the ing agent only the act of an where out of by remittitur. may be cured However this participated in, he authorized or or ratified 1, 2, overruled condi and are Points agent. Damages, the acts of the 25 C.J.S. tionally. 23; 732, 125(d), page Ster note Larson v. § etc., Tex.Civ.App., 177, ling, 153 S.W.2d complain points Appellant’s 4 and dism.; syl. Mortgage 7 error Bankers’ Co. allow double refusal to the trial court’s 408; Baxter, Tex.Civ.App., 66 S.W.2d 5073, Art. Vernon’s Ann. damages under Davis, Commonwealth of Massachusetts v. usury charg have been found to Civ.St.',for 398, 216, syl. 168 S.W.2d name defendants of the trade ed certain Onstott, Tex.Civ.App., Lusk v. damages Double parties therein. the and 549, syl. 5; Panola, Corbin, and etc. v. are in the nature of usury charged 688, Tex.Civ.App., 253 S.W.2d error ref. 16, 11, Art. sec. penalties. Texas Const. appears In the record here it Lee that W. Ann.St. Vernon’s Moore, partner as a with his father now penalties do not survive the In Texas deceased, general knew the nature of the party liable therefor or either death of business, salary received checks from one party thereto. 32 entitled offices, Tex.Jur. part or more of the loan received 'Penalties, cases there cited. sea profits offices, from one or more of such although he testified he did what parties now before the cause us do, father told him to record further penalties alleged are whom the .against shows he held an interest in General part- name chargeable were trade have been Loan since however was not and controlled de- nerships all owned in the business before active his father Moore, Jr., and W. Lee Lee W. fendant part the latter became ill of 1950. There is Sr., deceased. Moore, now testimony began also that he to learn about dispute penalties that 'the without It father’s business about the first n he're party by the to whom are claimed January His father died n are 5073,Vernon’s under Art. Ann.Civ. due appellant Wright, Under the above record wit, are we can 'St., to partnerships say the trial Court against and not erred his finding claimed him n thatW. partner Moore, Jr., Lee Jr., authorize, did not W. Moore, W. Lee n Lee deceased, estate, part- in, ratify Sr., participate Moore, as a acts of his having father. No issue been ner. submitted binding. unity design, of' action' and between finding jury, to the the court’s Sr., appellees Moore, from which are Lee Circumstances reference to W. With jury to the reasonably As could conclude his death. penalty abated at penalty parties they may be sued jointly, hold that acted partnership, we also joint jointly, can for the liability dissolution. and each be held terminated its East thereby. v. damage done Landers overruled. Points and S are Tex.Sup., Water, Texas 248 S.W. Salt etc., counter- Appellant under his Luther . 2d Texas Law Review aforesaid points 1, 2, "The and 3 asserts: cited 27 Texas Law Review number of out of a causes of action arose 3 are points Landers case. Cross separate entered distinct transactions overruled. ap- the several appellant and into between companies, separately at pellee loan stated, judgment For the reasons different-amounts, times, many different full re- to allow a below must be modified circumstances, loan no and under different jury. covery for amounts found party company being a to the transaction company.” loan judgment After -the is so reformed are jury, we conform to the verdict of the The record here most favorable judgment that the is exces is: rendered following in all in excess of the sive sums conspiracy by pleading alleged a (1) A. Luther and Mrs. (1) amounts: Paul A. him; appellees wrongfully harass all Service, Luther, Loan Reserve B. d/b/a ownership common connection with the $1,847; Luther and (2) the sum of Paul A. offices,or companies or loan groups of the Luther, 'Citizens Service Mrs. A. B. d/b/a *6 contempora- by single appellees individuals $1,770; (3) the sum of General by methods neous and collection malicious Moore, individ W. Lee Loans and companies resulting six the seven loan of independent ually. executor of and as physical collectively in mental severe Moore, estate of Lee the sum deceased, W. appellant called and damage; was $1,207; (4) Finance Co. and W. of an- daily by office after harassed one loan individually independent Moore; Lee and as manner; in each an almost identical Moore, W. Lee executor of the estate. reported to the Retail Merchants Credit deceased, $1,169; ‘(5) .of Acme the sum claiming Association a debt but not de- Moore, Company Lee indi Loans W. part in usurious scribing the debt to be vidually and as executor of the estate interest; appellant .all which Moore, deceased, $1,150; Lee the sum of W. mental and resultant suffered both wife Lee (6) Texas State Finance Co. and W. personal harm. independent Moore, individually and as Moore, the estate of Lee executor of W. they Appellants claim harassed $1,150. deceased, All (7) the sum of costs appellees continuously by daily said six of ‘Court, in the court and in- this are below, calls, other, a chain of one after the such apportioned equally against the several headaches, resulting suffering in their vom- - appellees. weight, iting spells, fatigue, loss of ap- blackouts; they say cannot which days If a remittitur is filed within ten condition, only pellee which but caused indicated, from this date above appellees acting jointly actions of below, such remit- judgment reduced result; each, about the and that brought affirmed; titur, judg- otherwise the will be knowledge acted with having of the acts of the trial court will reversed and ment to, others, jointly contributed cause remanded to the District Court resulting damages. caused the others, all trial. for another pleadings, sup the above Under evidence, DIXON, hold
ported J., we that the concert concurs. C.
608 misconduct, opinion are
YOUNG, J., being negligent we of the intentional appeal, though took jurisdiction may without of this there not have been actual physical disposition impact. compara- no of cause on contact or In a tively Supreme recent our has case Court merits. again opinion so held in an subject is discussed at some length, DIXON, (concurring!). Chief Justice numerous cited, authorities are many of them Texas cases. Houston participate in Electric v. my not to Co. It was intention Dorsett, 95, 145 194 Tex. S.W.2d 546. Also appeal, Judge I was the this see Trammell, Levine v. 41 case 95th when the District Court Ref.; Supreme St. However our Louis Southwestern originally tried. Ry. Co. Murdock, Tex.Civ.App. v. in an Chief Gaines Justice Ref.; SW. Hendrix & holding: grounds “The Texas has made this v. Ry. Co., P. Tex.Civ.App. judges courts disqualification of of the 89 S.W. constitution, Yoakum Kroeger, Tex.Civ.App., specified in this state are S.W. 953. others; and of all are exclusive may judge fact that a have tried undoubtedly Cramer is correct Justice court, participated case in a lower appellant’s statement that refusal court, is not made one decision such agree to a remittitur judge as trial Const, Taylor v. Wil- them. art. § might judgment have set aside liams, are 583. Therefore we Tex. trial, granted a new but that I did have not clearly opinion that Judge of the Williams authority to reduce the appel- amount of that, disqualified, but since was not not judgment. My lant’s action in reducing myself agree could Judge Brown and amount of was an error case, a decision it was against appellant of which he is entitled to duty to act.” Galveston & H. Inv. Co. complain on appeal. Grymes, 94 S.W. 778. Since agree my colleagues have been able to Of course this court too authority has disposition proper as to the suggest remittitur, and if re- duty it now becomes act notwithstand- fuses, this court reverse and remand *7 ing my parties to do reluctance so. The the case for another I trial. still believe at interest are entitled to have this court the verdict was excessive. Cramer Justice render a decision also thinks that it agree was. Therefore I participation furnishes the method appellant that if refuses to agree the disposition accomplished. can be which a the case will nemittitur be reversed Co., Burrage Production v. Hunt Tex.Civ. remanded. App., 114 1228. S.W.2d agree Cramer as to the dis- CRAMER, (on dismiss). motion to Justice Justice position of the Appellees separate in a motion insist that acquired jurisdiction we have not well settled in Texas that It is of course of this appeal, damages pray recovery will that the a not be allowed dis- be shock missed. fright for or nervous or mental suf- Co., fering Harned v. alone. jurisdic- The facts material to show our
Tex.Sup., 254 81. S.W.2d signed tion are: Final was equally 3, Appellant’s well this trial court 1953. However settled in March affi- recovery 13, 1953, that a be davit for costs was filed damages state March injuries physical clearly days 20 when such as within the allowed allowed under headaches, vomiting spells, weight, 356(b). duly loss of Rule The affidavit was con- blackouts, derangement thereafter fatigue, tested and contest sus- was system, have been trial court to proximately tained the extent nervous that n caused fright or nervous shock induced was able make a deposit, $250
© CD a
Bar
filed in Bar
118 and in 8 Texas
Appellant then
355(f).
under Rule
Journal
Journal
here,
45.
Material
the Committee
for mandamus
application
Court an
this
“
* *
*
a
question:
(2) When
the con- asked the
overrule
require
court to
355 can
requirement;
contest
is filed under Rule
deposit
test
without
immediately,
set and hear
words,
contest uncon-
court
overrule
contest
in other
days
full
grant-
necessary
or is it
to wait ten
hearing
after
ditionally. This Court
date
5,
filing
of the contest or from the
May
1953.
on
prayed
ed the writ as
for
of notice?” The Committee answered
Appellees’
motion was overruled
first
June
question:
ques-
“In regard
to the second
26,
motion
whereupon
filed second
tion
it is the
of the Subcommittee
entertained
rehearing which this Court
hearing
may
had
Wright
Peurifoy,
a contest
be
July
v.
overruled
17. See
after
notice
setting,
reasonable
with-
Tex.Civ.App., 260
234. The trial
S.W.2d
elapse.
waiting
ten-day period
by entering an out
a
complied with our
writ
provides
rule
that a
a
and The
court officer or
order
aside its former order
setting
party
may
the suit
contest the affidavit
sustaining the affidavit
costs uncondi-
3,
days
3,
giving
within ten
after the
no-
tionally
August
On
of such
August
* * *
‘whereupon
transcript
tice
the court
shall set
original
was filed in this
1953 the
28,
hearing.’
peri-
Court,
May
ten-day
the contest for
tendered
having been
28,
applies
Sept.
filing
A statement of facts was filed
and od
time allowed for
contest,
transcript
a
but- after a contest
supplemental
Nov. 18th.
is filed the
court can hear
at
same
rea-
time
Appellees in their motion to
cite
dismiss
tjie opinion
sonable notice.” And in
in 8
rely
V.R.
on Rules
Journal,
page
ques-
Texas Bar
at
C.P.;
Hugle
Fritz Motor
117 Tex.
v.
tion was:
“2. When
contest is
under
filed
84;
Tartt,
Brandon
S.W.2d
v.
Tex. Rule 355 can the court set and hear the
Civ.App.,
672;
Hufft,
220 S.W.2d
v.
Garvin
immediately,
contest
necessary
is it
391;
Maples
243 S.W.2d
days
full
filing
wait
ten
from the
Mutual, etc., Tex.Civ.App.,
Service
from the
contest or
date of notice?” To
dis.;
C.J.S., Appeal
error
which the
answered:
Subcommittee
“2.
Error,
981;
521, page
City
of Waco v.
§
opin-
regard to the
it is the
second
Roberts,
580;
121 Tex.
48 S.W.2d
ion
Subcommittee
McPherson,
Vinson v.
Tex.Civ.App., 54 upon
a contest
had after reason-
;
1183; C.J.S.,
S.W.2d 829
Appeal
C.J.
setting,
waiting
able notice of the
without
Error,
Shirley,
McAfee v.
Tex.
§
period
elapse.
ten-day
for a
The rule
Civ.App.,
932; Equitable Life,
140 S.W.2d
provides
party
court’ officer or a
etc., Murdock, Tex.Civ.App.,
may contest
the suit
affidavit within
Arsdell,
and Plummer v. Van
days
giving
ten
of such notice
*8
Tex.
© -OS.H-* ally were based was overruled different from contest Rules and 363. why affiant, it not be sooner Under good cause could the statutes then in effect an filed, contest, is used in even in good the term cause of a absence was re- quired to obtain a Rule 386. affidavit approved and have it following hearing. shown my opinion there is no error The statutes repealed. have since been dismiss and it should there- the motion to 355(e) Rule contrary pro- expressly overruled. fore be vides that where no contest is filed in the allegations allotted time the of the affi- taken, DIXON, davit shall J., in the be concurs result. true. The C. Hugle in the prior case was delivered to the promulgation of Rule 363 as amended in YOUNG, J., dissents. appellees’ interpretation Under dis- DIXON, (on motion to Chief Justice deserving diligent litigants Rules could miss). and doubtless would sometimes find them- Judge before whom this the trial I was position where, selves in through no fault pre I For that I reason tried. case was own, appeal of their impossible. an would be proceedings participate in not to ferred They would remedy be without a in either pertaining motion. to this However Jus court, or this court. Cramer have not been able Young tices A, hypothetical about should be done agree as what case illustrate notwithstanding my reluctance, point. Suppose it it, so, litigant desiring appeal disposition my duty inability take files his affidavit of pay costs on day Inv. Galveston & H. Co. v. the twentieth the motion. after his motion for new S.W. Bur Grymes, 94 is overruled. fairly He cannot Co., Tex.Civ.App., charged rage Hunt Production with lack diligence waiting day, until twentieth for Rule 356(b) al- him lows that much time. Moreover under appel- Cramer that agree with Justice duty our try law is his to make bond. should to dismiss be overruled. lees’ motion Certainly twenty days is not long too (cid:127)time to explore allow him to and exhaust that if Appellees a contest of an contend possibilities, of raising money, inability pay costs is over- affidavit obtaining appeal sureties for an bond. A thirty days any time after ruled at litigant who filed his affidavit immediately motion for new trial is over- the time.the overruling of his motion and the late, ruled, such action comes too and this fixing of- the appeal amount bond acquire jurisdiction Court does might find it any- well difficult to convince effort, one that he had made a bona fide very plain Rule 363 as to when make appeal a sufficient bond. Further- perfected. If an affidavit in lieu of more under 355(e) Rule until a contest is perfected a bond is contested the accepted his affidavit is filed as true. So “when contest is overruled.” The above unless he knows in advance that a contest *9 quoted words were added to the an Rule filed, will be he likely would not incur the in 1941. In this Judge amendment case expense and labor of preparing prove up to Peurifoy, conformity mandate, in to our his affidavit. 3, August overruled the contest 1953. In A contest need not be filed days until ten is that the date ap- when the given after notice is of filing the perfected. peal was hypothetical case, affidavit. our even if Hugle The case of v. Fritz Motor very notice were the given day, same the S.W.2d cited appellees, contestant days could wait ten under Rule point. It is not construed statutes materi- 355(c), to V.R.C.P. file his contest Thus
6IÍ desperate hope. merely could It he case shows that hypothetical in our the contest n day the willing on desired the comply the and was with at hour of be filed mo- the court’s day the of order if he should succeed in rais- overruling thirtieth say ing the money. Is it reasonable tion for new trial. hearing the affiant must obtain that the appellees’ I concur overruling motion appeal? very day his else lose contest to dismiss. circumstances think that under such I Rules, it would interpretation the such an of requirement only YOUNG, be an unreasonable (dissenting). not Justice requirement be a with —it also would Upon study perti- further of the record im- deserving litigants find it might often thereto, nent I conclude that the motion of comply. possible to appellees seeking dismissal of cause jurisdiction want of should be sustained. changed my mind about I have not granting propriety validity of our order T.C.P., Bond,” Rule “Cost relative mandamus, Wright v. a writ appellant of appeal, provides perfecting part: “* * * Peurifoy, Tex.Civ.App., 260 S.W.2d bond, appellant may or lieu of a appellant’s hearing of the contest of At the deposit equal the clerk cash the es- affidavit, appellant clear, positive, de- gave costs, less such sums timated as have been debts, income, testimony his as to tailed paid by appellant costs, to the clerk money his property, and efforts to raise and in the clerk among that event shall file gave bond for this He to make papers certificate showing that the he of amounts his creditors and the names deposit copy has been made and same in could The truth of his statements owed. transcript, and this shall have the force easily have been checked. But contestants appeal and effect of bond.” an Rule attempt to discredit or contradict appellants did not sought under which appeal, (cid:127)testimony appellant material as to the “Party Bond”, headed Unable to Give Cost permit which I believe provides: facts—facts “(a) appellant When un- such circumstances one inference. Under pay appeal able to costs of give or se- testimony appellant, he an though therefor, curity he shall be pros- entitled to party, accepted as true. must interested be filing ecute with the clerk his City Dallas, 141 Tex. McGuire v. that he stating pay affidavit is unable to 722; Ruby, Bartsch v. Tex.Civ. any part thereof, 170 S.W.2d the costs or therefor, Smith, App., 229 S.W.2d Wells v. give security The clerk (b) 430, Dis.Judgm. 144 S.W.2d give shall forthwith notice of the filing of Century Cor.; Hogan, Ins. Tex.Civ. Co. v. such the opposing affidavit to party or App., Luling & Gas Any Oil attorney, (c) interested officer of the Edwards, Tex.Civ.App., suit, S.W.2d party may, by Co. v. court or sworn quote page Error Dism. 926 of pleading, contest affidavit within ten of the last cited “The rule days case: giving after the of such notice where- testimony of trying the uncorroborated in- (if the court the case in ses- witnesses, although not con- sion) session) terested (if judge not troverted, conclusively county does not establish a -judge of court or the county in fact, applicable the nature of pending where which the case shall set the con- testimony might readily such that it hearing, test and the clerk give shall discredited, true, if it respective parties notice of setting, such party proof no disparaging (d) Upon offers proof adverse such burden of appellant The fact re- upon the whatever.” shall rest sustain affidavit, permission quested payment to make allegations (e) of his Where no security therefor, giving instead is contest is filed allotted time the alle- ability gations of his of the affidavit shall be evidence to raise that *10 not taken as true, appellant the (f) cash short time allowed much him. Where is able to part good give security evidence of for a pay rather faith and or of It is the costs 612 required to make if appeal he he the erroneous action or failure or refus-
of shall security (one of payment give judge prevent or such al to act the such shall ability. proper presentation As or the extent of his a the both) to of cause to 10, 1945, Appeals, by order of effective of Civil and be be cor- amended Oct. such court, judge Feb. And Rule 363 states that rected the the then 1946.” of trial perfected notice appeal -when the the shall not for “The is be reversed such error, appeal given appellate of and the bond or affi- but the direct court shall filed, error, judge davit in thereof has been or if the said to lieu correct contested, thereafter Appeals when the contest is shall affidavit is Court of Civil ” * * * proceed as if such or overruled. erroneous action failure to had act not occurred.” of the District Court Final order herein appeal March and basis of was dated appellant Here con- caused the 1953; pursuant taken to the fore- steps expiration hearing test to be set for were as follows: Affidavit of going Rules thirty-day period, of the but ad- suffered an inability pay appeal to costs of filed March i.e., compliance ruling, verse with Rule 355 13; by the contests District Clerk and (f) required. quite was A situation anal- others, 20th; Judge Peurifoy March on Tartt, ogous presented was Brandon in for fixing thereon March hearing the court meantime, appellant’s advised attorney holding: there “We are convinced that another court that because of matter in appellant has failed in in his efforts conflict, postponement he desired a of the appeal an perfecting to this It was court. April proceeding until at which time the Maples said the court in Mu- v. Service heard; actually contest was order sus- Company Texas, tual Insurance Tex.Civ. part: in taining same reading “The court App., appeal 169 S.W.2d 500 an bond plaintiff finds that the further is not unable prerequisite or perfec- affidavit is a appeal any pay the costs of or there- appeal tion of the and is therefore made of, security give toor therefor. On jurisdictional and that the time filing contrary court power bond is fixed absolutely without plaintiff pay that the is able finds or give * * * in court to extend it. When part, security for to-wit: $250 appellee filed his affidavit controverting appeal plaintiff cost of should be re- appellant the affidavit of inability of his quired payment make give such or secu- pay appeal give the cost of or secu- ability. rity plain- to the extent of his rity therefor the appel- burden rested court, tiff, open requested per- that he be right appeal lant to establish his under payment make mitted to of said in- the affidavit filed governed him and is security giving therefor.” stead by the rule announced Hugle v. Fritz day period noted that Motor 117 Tex. It appeal to file cost bond on it is ex- wherein announced that within ‘action pired April the instant trial hearing appellant’s on court an or request plaintiff appellant’s proof own had error’s being under this statute observed, day. Also to be is the fact unauthorized unless that prop- 31st action be appeal attempting to appellant one invoked such erly plain- affidavit paper prior expiration file required to in error more than tiff days from date of “such judgment period final time allowed by law the fil- order”; days ing appeal bond, the additional 10 being ob- or writ error , apart bond, viously time case may set if as the contest, appellant be.’ The only exception any. to this time sched- relied his affidavit of his inability to pay beyond relates circumstances the cost of give ule control or to security parties; illustrated in Smirl therefor until the filing time for Laboratories, elapsed. Upon Globe S.W. bond had the hearing the where Rule applica- 2d made denied the right * * ble, providing part“* same appeal upon such affidavit. The filing of an
613 thereafter, 979. After of which careful consideration appeal bond testimony contest, overruling of hearing had on days after the 30 more than was contrary conclude trial, confer that inferences does for new motion of his upon testimony Roy Wright the drawn pass of E. this court to jurisdiction mine.) (earning per at the time from appeal.” (Emphasis $350 $300 merits of the month), Judge that the action of Peur- “appeal Rule wording The of ifoy appellant, adverse to cannot be char- appeal is of notice perfected when the discretion; acterized as an abuse of es- in lieu or affidavit the bond given and so, pecially where, here, plaintiff as had affidavit is con- filed, or if has been thereof requested open permission in court for “to overruled”; tested, contest when the payment make giv- of said instead of quoted, it is language and in view of ing security therefor.” San Antonio effect, that the in position appellant, of Richardson, holding Court’s Schnitzer a of (as result proceedings mandamus Tex.Civ.App., is likewise S.W.2d August Peurifoy Judge controlling of the considered action of re- aside his to set directed this Court spondent judge; trial with result that re- contest) April overrule the 3 and order of by way lief ought of mandamus to have judgment for the substitution Says been denied. that Court: “On the have rendered the trial court should hand, of relator’s in- Rule under April and sufficient ability pay part secure all or a of the jurisdiction. purpose of appeal costs primarily of one of fact to be determined the trial judge from writer, although a of the member evidence adduced the hearing of a entertaining proceedings then said Court inability. contested affidavit of Ón the mandamus, now that our favor- concludes hearing in this instance relator testified at validity able action thereon had no more length upon that issue. If full favorable Peurifoy ruling Judge than the of which it given effect be testimony and all de- replace. intended to For on that date therefrom, ducible inferences he would be (April jurisdic- 3) the trial court had lost right entitled to the of under hearing make at order tion hold statute. But is obvious that However, pointed all. out defense judge did give full credence to all re- counsel, “appellant right did not lose his of testimony, but, lator’s on the contrary, appeal by any erroneous of as a that relator was fowid fact therefrom appraising court in evidence. He able pay or secure at part least a by lapse lost it of time.” appeal. costs Looking at the record assuming But even validity April presented, say, we cannot as a matter procedure, opinion, law, this in that the trial judge (presumably ac- province respondent quainted vaded the parties court as with the and their situa- judge tions, trier of the facts and weight seeing the witnesses credibility testimony, testify upon issue) interested abused his discre- when it directed him to reverse his tion holding action the evidence showed sustaining pay relator is able to contest. Such or secure trial court appealable; order was not costs of so, This being alternative this remedy authority Court is without being require mandamus not available officers inability unless the truth of affiant’s of the trial court to pay furnish a free beyond prosecute costs record to relator to him dispute. be established enable Burle Rawlins, son (Emphasis in the case.” mine.)