Needham v. Cooney , 173 S.W. 979 ( 1915 )

On Rehearing. It is insisted that, in view of an agreement appearing in the record, we erred in applying the provisions of chapter 59, Acts Thirty-Third Legislature, because it was agreed by the parties that the case should be tried "under the old law." Referring to the agreement, we find it is simply a waiver of verified pleadings required by chapter 127, Acts of said Legislature (Vernon's Sayles' Ann.Civ.St. 1914, arts. 1827-1829b) and does not relate to chapter 59. Furthermore, the provisions of chapter 59 are intended to protect and guard against the commission of errors in the trial court's charge, and, to avoid unnecessary appeals and reversals, agreements to waive its provisions should not be respected by appellate or trial courts. Railway Co. v. Wadsack, 166 S.W. 42.

A vigorous attack is also made upon the correctness of the position assumed in overruling the assignments complaining of the peremptory instruction. We adhere to the view expressed in the original opinion. But in any event it would follow from our holding upon the other assignments that the peremptory instruction was properly given.

Verdict and judgment were rendered in Needham's favor against Harrison for $2,196; the same being the amount paid by Needham at the execution sale for the nine sections decreed to Cooney. Upon motion for rehearing our attention for the first time is directed to the fact that this portion of the verdict and judgment finds no support in the pleadings. An inspection of the pleadings discloses that Needham made no attempt to state a case against Harrison, and asked no relief whatever against him. With the pleadings in this condition, the judgment in his favor against Harrison must be regarded as a nullity. Hart v. Hunter,52 Tex. Civ. App. 75, 114 S.W. 882; Railway Co. v. Skeeter,44 Tex. Civ. App. 105, 98 S.W. 1064; Watt v. Parlin, etc.,44 Tex. Civ. App. 439, 98 S.W. 428. It is the duty of this court to now set it aside.

The order heretofore made disposing of this case will be therefore amended, so as in all things, to affirm the judgment of the court below, except: First, the said judgment in Needham's favor against Harrison for said sum of $2,196; and, second, as respects the issue of Cooney's right to recover of Harrison the money in the latter's hands derived from the foreclosure sale on October 7, 1913, in cause No. 781, entitled P. Albert Cooney v. D. Leslie Cole et al.

In these two respects only is said judgment reversed and remanded. Needham's right to recover said $2,196 shall be tried if proper pleadings be filed raising the issue. The issue indicated between Cooney and Harrison shall be tried when the necessary parties have been joined.

Except as herein indicated, the motions for rehearing are overruled.