RICHARDS v. U.S. COLD STORAGE CO

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Docket Number

No. 7236.

Attorney(S)

Paul G. Peurifoy, of Dallas, for plaintiff in error. The right to appeal from an order overruling a motion for new trial dates from the entry of such order on the minutes, and not from the rendition of such order by the judge. Gilmore v. Ladell, 34 S.W.2d 919; Bean v. Peurifoy, 74 S.W.2d 126; Peurifoy v. Wiebusch, 125 Tex. 207, 82 S.W.2d 624. Hubbard T. Bowyer, of Dallas, for defendant in error. The entry of an order overruling motion for new trial prior to time of filing an appeal bond is not essential to an appeal in courts operating under Article 2092 of the Revised Statutes of 1925. Thomas v. Murphy, 125 Tex. 105, 81 S.W.2d 59; Millers Mut. Fire Ins. Co. v. Wilkirson, 124 Tex. 312, 77 S.W.2d 1035; Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040.

Judges

MR. JUDGE GERMAN delivered the opinion of the Commission of Appeals, Section A.

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Smart Summary

Factual and Procedural Background

J. C. Richards sued the United States Cold Storage Company and the Leftwich Marketing Company for a loss resulting from the defendants' failure to complete a contract to purchase 10,000 bushels of onions. Leftwich Marketing Company did not answer. The United States Cold Storage Company defended on grounds that its manager lacked authority to make the contract and that, to the extent it had guaranteed performance, the guarantee was not in writing and thus unenforceable under the Statute of Frauds. A jury verdict led the trial court to enter judgment for Richards in the amount of $4,393.51 against both defendants. The Court of Civil Appeals reversed and rendered as to the United States Cold Storage Company but left the trial-court judgment against Leftwich Marketing Company intact (99 S.W.2d 697). Before the Court of Civil Appeals rendered its judgment, Richards filed a motion to dismiss for lack of jurisdiction and a motion to strike assignments of error; both motions were overruled. Richards brought writ of error to the Supreme Court of Texas. The Supreme Court referred the case to the Commission of Appeals, adopted that opinion, and ordered judgment entered in accordance therewith, affirming the judgment of the Court of Civil Appeals.

Legal Issues Presented

Whether the filing of a supersedeas/appeal bond before the clerk's entry of an order overruling a motion for new trial on the minutes (but within thirty days after the order was made and during the same term) deprived the Court of Civil Appeals of jurisdiction — i.e., whether the right to appeal in such circumstances dates only from the date the order is entered on the minutes.
Whether there was sufficient evidence to support the jury finding that Moss had apparent authority to represent the United States Cold Storage Company (an issue raised by plaintiff in error and addressed by the Court of Civil Appeals).

Arguments of the Parties

Plaintiff in Error (J. C. Richards)

Contended that the right to appeal in cases involving a motion for new trial dates solely from the date the order overruling the motion is actually entered on the minutes, and therefore a supersedeas bond filed prior to that minute entry was premature and deprived the Court of Civil Appeals of jurisdiction.
Relied upon authorities (as cited by counsel) supporting the proposition that the appeal period runs from entry on the minutes (examples cited in the record: Gilmore v. Ladell; Bean v. Peurifoy; Peurifoy v. Wiebusch).
On the merits, assigned error to the Court of Civil Appeals' holding that there was insufficient evidence of Moss's apparent authority to bind the United States Cold Storage Company.

Defendant in Error / Respondent (United States Cold Storage Company and opposing counsel)

Contended the filing of the appeal/supersedeas bond within thirty days after the motion for new trial was overruled (and during the same term) was timely under the applicable statute and did not render the appeal invalid even though the clerk's minute entry was made later; cited authorities supporting that entry on the minutes prior to bond filing is not essential under the statute (examples cited in the record: Thomas v. Murphy; Millers Mut. Fire Ins. Co. v. Wilkirson; Coleman v. Zapp).
On the merits, the Court of Civil Appeals (and the opinion adopted by the Commission of Appeals) concluded there was no evidence to support a finding of Moss's apparent authority to represent the company; plaintiff in error's assignment on that point was not supported by a statement from the record or argument refuting the Court of Civil Appeals' discussion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gilmore v. Ladell, 34 S.W.2d 919	Cited for the proposition that the right to appeal may date from entry on the minutes in cases where entry depended upon an order nunc pro tunc.	The Court distinguished Gilmore as involving cases requiring a nunc pro tunc entry; it held Gilmore's rule did not apply to the present facts because no nunc pro tunc necessity existed here.
Bean v. Peurifoy, 74 S.W.2d 126	Cited by plaintiff in error in support of the proposition that the right to appeal from an order overruling a motion for new trial dates from the entry of such order on the minutes.	Not adopted as controlling; the opinion treats such authorities as inapplicable to facts where the order was made, signed, dated and entered during the term at which it was made.
Peurifoy v. Wiebusch, 125 Tex. 207, 82 S.W.2d 624	Cited by plaintiff in error to support timing of appeal rights tied to minute entry.	The Court did not apply this as controlling for the reasons given distinguishing cases dependent on nunc pro tunc entries.
Thomas v. Murphy, 125 Tex. 105, 81 S.W.2d 59	Cited by respondent as authority that the entry of an order overruling a motion for new trial prior to filing an appeal bond is not essential to an appeal in courts operating under the referenced statute.	Used to support the conclusion that the appellate court retained jurisdiction despite the bond being filed before the clerk's minute entry; consistent with the statutory language applied.
Millers Mut. Fire Ins. Co. v. Wilkirson, 124 Tex. 312, 77 S.W.2d 1035	Cited as authority for the proposition that the timing of the clerk's minute entry is not a jurisdictional bar where statutory conditions are satisfied.	Relied on as part of the body of authority supporting respondent's position and the Court's affirmance of the Court of Civil Appeals' jurisdiction.
Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040	Cited for similar procedural rule respecting appeals and timing of bond filing under the statute.	Referenced as supporting authority for the Court's conclusion that the appeal bond filed within the statutory period was effective to invoke appellate jurisdiction.
Cooper v. Carter, 233 S.W. 1020	Quoted for the rule that when a judgment was not entered until after an appeal bond relied on to perfect the appeal had been filed (i.e., the judgment was not entered at the term when the cause was tried), the judgment was not legally effective for review by appeal.	The Court distinguished Cooper as involving a situation where no judgment had been entered at the earlier term and an entry later required nunc pro tunc treatment; Cooper was inapplicable to the present facts.
99 S.W.2d 697	Reference to the Court of Civil Appeals' decision reversing and rendering as to the United States Cold Storage Company and leaving the judgment against Leftwich Marketing Co. undisturbed.	The Supreme Court affirmed this Court of Civil Appeals judgment and adopted the reasoning rejecting plaintiff in error's assignments on the sufficiency of evidence of apparent authority.

Court's Reasoning and Analysis

The Commission of Appeals identified one primary question: whether the right to appeal in a case with a motion for new trial begins only when the order overruling that motion is actually entered on the minutes, or whether the statutory provision permitting filing of an appeal bond within thirty days after the motion is overruled governs where the order was made, signed and dated during the term but the clerk's minute entry occurred later.

The Court reviewed the record chronology: trial June 26, 1935; motion for judgment July 1, 1935; written judgment dated July 31, 1935 (signed and shown as entered in the court minutes, although the record did not show when recorded); amended motion for new trial filed and overruled July 31, 1935 (order reduced to writing, signed and dated July 31); clerk later endorsed the order with "Entered August 31, 1935." The supersedeas bond was approved and filed August 19, 1935 — within thirty days after the July 31 overruling.

The Court applied the governing statutory provision (Article 2093a, subdivision 4, which in the pertinent language corresponds to prior Section 31 of Article 2092) stating that where a motion for new trial is filed, the appeal bond shall be filed within thirty days after the motion for new trial is overruled. The Court read the statute to permit appeals "after the motion for new trial is overruled."

The Court distinguished prior cases relied upon by plaintiff in error (notably Gilmore v. Ladell and Cooper v. Carter) as involving circumstances where an entry depended upon a nunc pro tunc order — i.e., situations in which no judgment or order had been entered at the term when the action occurred and the later entry was necessary to reflect what had taken place earlier. Because in the present case the order overruling the motion was made, reduced to writing, signed by the judge, dated July 31 and was entered on the minutes during the same term, the rule applied in the nunc pro tunc cases did not apply. Consequently, the Court concluded the filing of the supersedeas bond on August 19, 1935 (before the clerk's minute notation of August 31) was not so premature as to deprive the Court of Civil Appeals of jurisdiction.

On the merits, the Court accepted the Court of Civil Appeals' conclusion that there was no evidence to support a finding that Moss had apparent authority to bind the United States Cold Storage Company. The Court also noted plaintiff in error failed to furnish a statement from the record under his assignment or to meaningfully challenge the Court of Civil Appeals' discussion; therefore that assignment could not be sustained.

Holding and Implications

Holding: The judgment of the Court of Civil Appeals is affirmed.

Direct consequences:

The Court held the Court of Civil Appeals had jurisdiction despite the supersedeas bond's having been filed before the clerk's later minute entry of the order overruling the motion for new trial, because the order had been made, signed, dated and entered during the same term and the bond was filed within the thirty-day statutory period.
The Court affirmed the Court of Civil Appeals' decision to relieve the United States Cold Storage Company of liability (finding no evidence of Moss's apparent authority) while leaving the trial-court judgment against Leftwich Marketing Company undisturbed.
Plaintiff in error's assignment challenging the sufficiency of the evidence of apparent authority was denied because it lacked a supporting statement from the record and failed to impeach the Court of Civil Appeals' statement.

The opinion did not articulate broader rule-making beyond its statutory construction and the distinctions it drew from nunc pro tunc cases; the decision's practical effect is the affirmation of the appellate judgment and the described disposition between the parties.

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J. C. RICHARDS v. UNITED STATES COLD STORAGE COMPANY ET AL.

1. — Appeal and Error — Supersedeas Bond — Jurisdiction.

The filing of an appeal bond within thirty days after judgment or motion for new trial has been entered or overruled, and at the term at which the order was entered on the minutes, although prior thereto, was not so premature as to deprive the Court of Civil Appeals of jurisdiction.

2. — Assignments of Error.

An assignment as to an erroneous holding of the Court of Civil Appeals which is supported by neither a statement from the record nor argument impeaching the statement made by the Court of Civil Appeals in discussing same, cannot be sustained.

MR. JUDGE GERMAN delivered the opinion of the Commission of Appeals, Section A.

There is really but one question of importance in this case. The writ of error was granted upon an assignment submitting the proposition that the right to appeal, in a case where there is a motion for new trial, dates solely from the date the order overruling the motion for new trial is actually entered in the minutes of the court, notwithstanding the order overruling the motion is reduced to writing, signed by the presiding judge, and shows on its face the date it was made in open court, and was entered on the minutes during the term at which the order was made.

In this case the judgment recites that the cause came on for trial June 26, 1935, and was submitted to a jury upon special issues. It further recites that on July 1, 1935, plaintiff filed motion to have judgment entered in his favor on the verdict previously returned. The judgment contains a further recital that it is dated July 31, 1935. The written judgment was signed by the presiding judge, and is shown to have been entered in Volume K, page 354 of the minutes of the court. There was nothing to show when same was actually recorded in the minutes. It is not contended that it was not entered during the term of court at which it was rendered.

On July 31, 1935, defendant filed amended motion for new trial. On the same day this motion was overruled. The order overruling the motion was reduced to writing and signed by the presiding judge. It bears the date July 31, 1935, and recites that "on this day came on to be heard the amended motion for new trial." At the top of the order appear the words "Entered August 31, 1935." There is nothing to show when this notation was made. However, there is an endorsement on the order as follows: "Order Overruling Amended Motion for New Trial. Entered in Vol. K, page 411, Mins. 101st Dist. Court August 31, 1935." This endorsement is signed by the clerk. This order was entered during the term at which it was made.

Therefore it appears that the order of the court overruling the motion for new trial was made on July 31, 1935, reduced to writing and signed by the presiding judge. It is further shown that the order was not written into the minutes until August 31, 1935. Supersedeas bond by defendant was approved by the clerk and filed August 19, 1935. This was within the statutory time for filing after the overruling of the motion for new trial on July 31, 1935. It was contended in the Court of Civil Appeals and is contended here that the appellate court should have dismissed the appeal because of want of jurisdiction. This contention is based on the claim that as the bond was filed prior to the date the order was entered on the minutes, it was functus officio, because the date of the entry by the clerk of the order in the minutes fixed the earliest date an appeal could be taken.

This suit was tried in the district court of Dallas County which is governed by the Special Practice Act, and Article 2093a, as amended by Act effective May 1, 1935, is applicable. However, subdivision 4 of said Act, so far as applicable here, is in the same language as was Section 31 of Article 2092 prior to the amendment. The pertinent portion of said article is as follows:

"Appeal Bonds Filed, When. — In appeals from such District Courts the appeal bond shall be filed within thirty days after the judgment or order appealed from is rendered, if no motion for new trial is filed, and if a motion for new trial is filed, the appeal bond shall be filed within thirty days after the motion for new trial is overruled."

1 Under this article appeals may be taken "after the motion for new trial is overruled." As the order overruling motion for new trial was entered on the minutes during the term at which it was made, the rule contended for by plaintiff in error has no application. He relies strongly upon the case of Gilmore v. Ladell, 34 S.W.2d 919. In that case the court followed the rule established in cases where the entry of judgment or order overruling motion for new trial depended upon an order nunc pro tunc. The decision was expressly based upon the case of Cooper v. Carter, 233 S.W. 1020, and the court quoted from that case as follows:

"And since the judgment attempted to be appealed from in this case was not entered until after the appeal bond relied on to perfect the appeal had been filed, the judgment was not legally effective for review by appeal."

By reference to the case of Cooper v. Carter it will be seen that no judgment was entered on May 28, 1920, at the term of court when the verdict of the jury was entered, and on December 3, 1920, at another term of the court, "the court made an order that judgment be entered in accordance with the verdict of the jury returned May 28, 1920, no judgment whatever having theretofore been entered." Obviously, the rule established in a case of that kind could not be applicable to the facts of the present case. By examination of the cases cited by the Court of Civil Appeals in the case of Gilmore v. Ladell it will be found that all of them involve appeals where there had been a necessity for an order nunc pro tunc.

2 The Court of Civil Appeals held that it had jurisdiction, and for the reasons herein stated we affirm that holding. The court also reversed and rendered the case against plaintiff in error. 99 S.W.2d 697. In doing so it held that there was no evidence to support a finding that Moss had apparent authority to represent the defendant United States Cold Storage Company. On the merits of the case plaintiff in error presents one assignment only, which is to the effect that the Court of Civil Appeals erred in holding that there was not sufficient evidence to support a finding that Moss had apparent authority to make the contract sued on. Plaintiff in error makes no statement from the record under this assignment, and his argument in no manner impeaches the statement made by the Court of Civil Appeals in discussing this proposition. The contention therefore can not be sustained.

Judgment of the Court of Civil Appeals is affirmed.

Opinion adopted by the Supreme Court January 26, 1938.

Rehearing overruled March 16, 1938.