Humble Oil & Refining Co. v. Johnston (5 S.W.2d 836, 1928)

BAROUS, J.

Appellee J. W. Johnston filed this suit against appellant, I-Iuinble Oil & Refining Company, and against E. W. Jarman, W. C. Guyler, L. A, Smith, H. H. Groneman, and O. A. Groneman, to recover $308 which appellee Johnston alleged was due him by the partnership of Jarman, Smith & Guyler as a commission which he had earned- in the sale of certain mineral estates belonging to them to appellant, Humble Oil & Refining Company. He alleged that appellant had purchased from said Jarman, Smith & Guyler certain mineral estates for $3,080; that he was entitled to a 10 per cent, commission thereon, and that said parties had given him a written order on appellant for said amount, and had thereby transferred to him the sum of $308 of the purchase price, which appellant was to, and had promised to, pay said owners for said mineral estates. Ap-pellee Johnston further alleges that, after he had obtained said order and assignment, he filed the same with appellant, and that thereafter appellant, in disregard of said transfer, assignment, and order, paid all of said funds to H..H. and C. A. Groneman. E. W. Jarman filed a waiver of service, and the Humble Oil & Refining Company filed answer. Appellee Johnston dismissed as to all defendants except appellant and E. W. Jarman, alleging as the reason therefor that all of them were nonresidents of Texas, and were notoriously insolvent. Appellant in an amended answer asked by way of cross-action, in event Judgment was rendered against it, for judgment over against Jarman, Smith & Guyler and H. H. and C. A. Groneman, on the allegation that it had paid all the purchase money for said mineral estate to H. H. and C. A. Groneman on the order of Jarman Smith & Guyler. No service, however, was obtained by appellant on its cross-action. The cause was tried to the court, and resulted in judgment being entered for appellee Johnston against appellant and E, W. Jarman, jointly and severally, for the sum of $308.

Appellant alone appeals, and by its first three propositions contends that the trial court committed fundamental error in failing and refusing to render judgment for it over against its codefendants on its cross-action. All these assignments are overruled, for the reason that appellant had not obtained service on any of said defendants, and none of them had filed answer, and the trial court therefore had no jurisdiction over said parties, and could not render any judgment which in any way affected .their rights.

Appellant, by its fourth, fifth, sixth, and seventh propositions contends that the trial court committed fundamental error in rendering judgment against it, for the reason that appellee Johnston’s petition did not allege any cause of action against it. Appellant contends that, in order for an assignment of a portion of the funds which it owed to Jarman, Smith & Guyler to be effective and binding upon it, it was necessary for it to accept said assignment and transfer and promise and agree in writing to pay the same. We overrule appellant’s contentions. It seems to be the well-settled principle of law in this state that an assignment of a portion of a chose in action for a valuable consideration is good in equity, and that it may be made either by direct transfer or by an order drawn upon the particular fund. Harris Co. v. Campbell, 68 Tex. 22, 3 S. W. 243, 2 Am. St. Rep. 467; Neeley v. Grayson County Nat. Bank, 25 Tex. Civ. App. 513, 61 S. W. 559; Clay-Butler Lumber Co. v. Pickering Lumber Co. (Tex. Civ. App.) 264 S. W. 267; Id. (Tex. Com. App.) 276 S. W. 664.

Appellant, by his eighth and last proposition, contends that the trial court committed fundajnental error in failing ánd refusing to file findings of fact and conclusions of law. We overrule this assignment. Appellant does not, under this or any other proposition, attempt to show that it was in any way injured by the failure of the trial court to file its findings of fact and conclusions of law. The record shows that the request for findings of fact and conclusions of law was seasonably made, and that the court did, on the thirteenth, instead of the tenth, day after adjournment of court, file a full and complete findings of fact and conclusions of law. The transcript, which was filed in the appellate court six months before the case was briefed, contains the findings of fact and conclusions of law as filed by the trial court. Appellant in its assignments of error filed in the trial court nor in its brief filed in this court does not in any way attack the judgment of the court, because it is not supported by the evidence. Neither does it contend that there were any controverted issues of fact to be submitted to the jury. It appears from the record that appellant defended the cause of action on the theory that it was not liable, under the statute of frauds, because it had not accepted in writing the assignment of the portion of the funds which had been made by Jarman, Smith For other oases see same topic and KEY-NUMBEK in all Key-Numbered Digests and Indexes

On Motion for Rehearing.

Appellant in its motion for rehearing strenuously insists that there is fundamental error apparent of record because the judgment of the trial court is not a final judgment, in that it fails to specifically dispose of its cross-action against its codefendant, E. W. Jarman. The record in this case reveals that appellee Johnston brought this suit against appellant and against E. W. Jarman, L. A. Smith, W. C. Guyler, H. H. Groneman, and O. A. Groneman for $308. None of the defendants except appellee were, served with citation. E. W. Jarman waived the issuance of citation, and entered his appearance, but made no further answer. Appellant by' an amended pleading denied liability, and by way of cross-action alleged that, if it were liable to appellee Johnston, it was entitled to judgment over against all of its codefendants for any sum that it might be required to pay ap-pellee on his claim because it had paid the money to H. H. and O. A. Groneman on the order of- the other named defendants. Ap-pellee Johnston, by amended pleading, dismissed all of the defendants, except appellant and E. W. Jarman, alleging, as a reason therefor, that all the defendants were nonresidents of Texas, and were totally insolvent, and that no service had been had upon any of them except E. W. Jarman, who' had waived same. The cause was tried to the court, and judgment was entered for Johnston against appellant and E. W. Jar-man, jointly and severally. The judgment does not mention the cross-action of appellant against its codefendants.

A large number of the authorities cited by appellant in support of its contention were discussed, and either specifically or by implication overruled by the Supreme Court in the case of Trammell v. Rosen, 106 Tex. 132, 157 S. W. 1161. Prior t o the opinion in the Trammell v. Rosen Case, there were two distinct lines of authorities in this state, one termed by the Supreme Court in said opinion as the stricter rule of construction of judgments, and the other as the liberal rule with reference to whether the judgment of the trial court had by implication disposed of all the parties and issues. The Supreme Court adopted the liberal rule of construction, and held in said ease that, if by any reasonable implication it could be said that the judgment of the trial court had disposed of the issues and parties, the appeal would, not be dismissed because of lack of finality of the judgment rendered. This opinion has been cited many times, and followed by an unbroken line of authorities It does not appear from the record in this case that appellant objected to the judgment of the trial court because it did not specifically dispose of its cross-action against its codefendant, and there is nothing in the record which indicates that the appellant in any way called its cross-action to the attention of the trial court or invoked any ruling thereon.

Appellant did not ask for the cause to be continued to get service on its cross-action, and no objection on its part is shown by the record to the action of the trial court in dismissing from the case its codefendants Grone-mans, to whom appellant alleged it had paid the money. Appellant appealed from the judgment of the trial court as a final judgment, and did not assign error to the action of the trial court in failing to render judgment on its cross-action. Under facts very similar to these, it has been held that it will be presumed in support of the judgment that the defendant waived or abandoned its cross-action against its eodefendant, and that the judgment was a final judgment, although the cross-action was not mentioned. Burton-Lingo Co. v. First Baptist Church of Abilene (Tex. Com. App.) 222 S. W. 203; Kirk v. City of Gorman (Tex. Civ. App.) 283 S. W. 188; Ellis v. Harrison (Tex. Civ. App.) 52 S. W. 581 (error refused). Among other numerous authorities that might be cited, holding in effect that a cross-action not specifically disposed of by the judgment of the trial court is disposed of by implication, we cite: Southern Pacific Co. v. Ulmer (Tex. Com. App.) 286 S. W. 193; Tennison v. Donigan (Tex. Com. App.) 237 S. W. 229; Phillips v. Jones (Tex. Civ. App.) 283 S. W. 298; Mathis v. Overland Auto Co. (Tex. Civ. App.) 265 S. W. 1069; Moody v. Smoot, 78 Tex. 119, 14 S. W. 285; Varrs v. Faulkner (Tex. Civ. App.) 138 S. W. 789; Porter v. P. & N. T. Ry. Co., 56 Tex. Civ. App. 479, 121 S. W. 897; Wilson v. Smith, 17 Tex. Civ. App. 188, 43 S. W. 1086; Houston Oil Co. v. Village Mills Co. (Tex. Com. App.) 241 S. W. 122. In this case appellee’s cause of action was not in any way dependent upon the cross-action filed by appellant against its codefendants, and could not in any way affect same. The record failing to show that appellant called its cross-action against its eo defendants to the attention of the trial court, or that it excepted to the action of the court in failing to specifically dispose thereof, or that it assigned error thereto, and there being no contention on its part that it has been in any way injured thereby, same does not present such fundamental error which requires a dismissal of the appeal.

We have carefully examined appellant’s motion for rehearing, and same is overruled.