Action by Ray Thompson and another against T. L. Camp and another, doing business as the Denby Truck Company. From judgment for plaintiffs, defendants bring error. Reversed and remanded. R. C. L. vol. 21, pp. 1265 and 1315; Standard Enc. of Proc. vol. 20, p. 663. And that article 2119 of the statutes furnishes the particular provision of the law as to the manner of issuing, serving and returning such J. N. Townsend, of Dallas, for plaintiffs process. Doak v. Biggs (Tex. Civ. App.) in error. W. H. Russell, of Hereford, for defendants in error. BOYCE, J. [1] Roy Thompson and wife brought this suit against T. L. Camp and Edwin Hobby, partners, doing business in the name of the Denby Truck Company, of Texas, to recover damages for the wrongful taking by defendants of an automobile truck from plaintiffs' possession. It was alleged 235 S. W. 959. These cases further hold that on an appeal from a judgment overruling the plea of privilege, rendered on such a hearing, without the appearance of the defendants, the record must, in order to susservice of the notice above provided for, and tain the judgment, affirmatively show proper that in such case there is no presumption of due service." Doak v. Biggs, supra. The apservice, "even though the judgment recites of this case requires a reversal of the judgplication of these propositions to the facts ment. that defendants had a chattel mortgage on affidavit are sufficient to maintain the venue Defendants filed pleas of privilege, regular under the statute, to be sued in Dallas county, where they resided. Plaintiffs filed a controverting affidavit, in which they repeated the statement of their petition, that the suit was for damages for trespasses committed in Deaf Smith county. The court noted an order on the controverting affidavit, setting a hearing thereon for November 17, 1921. On November 29th, judgment was rendered without further appearance of defendants overruling the plea of privilege and on the merits for the plaintiff Roy Thompson for the recovery of the sum of $2,700. This judgment recited that the defendants were "duly served with copy of such controverting affidavit to said plea of privilege and the notation of the court thereon for more than ten days before same was heard." No other evidence of service of such notice appears in the record. Reversed and remanded. McCONNON & CO. v. POWELL et al. (No. 2608.) (Court of Civil Appeals of Texas. Texarkana. Monopolies 17(1)-Contract to sell products of manufacturer in restricted territory for stipulated portion of selling price held agency contract, and not violative of AntiTrust Act. A contract with a manufacturer for the handling and sale of its products in a restricted territory and for a stipulated portion of the selling price. and with agreement to return all unsold products at any time and to terminate the agreement, is a sales or agency contract and not violative of the Anti-Trust Act. Appeal from Smith County Court; D. R. Pendleton, Judge. Suit by McConnon & Co. against C. P. Powell and others. From a judgment for defendants, plaintiff appeals. Reversed, and judgment for plaintiff. [2] The service of notice on the defendants, of the filing of the controverting affidavit, and the order of the court setting the same down for hearing, required by article 1903, Revised Statutes, is jurisdictional. Brooks v. Wichita Mill & Elevator Co. (Tex. Civ. The appellant, a private corporation manApp.) 211 S. W. 288; Craig, Sheriff, v. Pitt-ufacturing certain products, made an agreeman (Tex. Civ. App.) 234 S. W. 1112. It has ment with C. P. Powell pertaining to the been held that a compliance with this provi- handling and sale of its products in the assion for notice requires the issuance and signed territory of the south half of Smith service of regular judicial process in the county alone. C. P. Powell was required manner provided by the general law applica- to have executed by two responsible persons ble to such matters. McGhee v. Maxey (Tex. a written guaranty of payment of any inCiv. App.) 230 S. W. 735. See, also, Al- debtedness incurred by him to appellant. Mr. bright-Pryor Co. v. Pacific Selling Co., 126 Huddle and Mr. Hill, the appellees, signed Ga. 498, 55 S. E. 251, 115 Am. St. Rep. 108; | the guaranty, and the appellant brought the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) suit against them to recover upon their written guaranty. C. P. Powell was also sued, as principal debtor; but he was dismissed from the suit before trial, for lack of service upon him. The defense is that the contract made between C. P. Powell and the appellant was illegal and unenforceable because it was a sales agreement which violates the Anti-Trust Law of the state. The case was submitted to a jury on special issues, and upon the findings of the jury the court entered a judgment in favor of the defendants in the suit. It is contended on appeal that the court should have entered judgment on the jury findings and the undisputed evidence in favor of the plaintiff in the suit. It was admitted that the appellant and C. P. Powell made an agreement pertaining to the handling and sale of the products or output of appellant. The terms of the agreement were, as found by the jury, that C. P. Powell should sell the manufactured products of appellant in the given territory of the south half of Smith county, and he was to have the exclusive right to sell and was to confine his sales of such products to that given territory alone; C. P. Powell was to devote his whole time to the sale of and was to sell exclusively the products of appellant, and was to make weekly reports to the appellant of his sales, and was to make not less than three trips over the given territory each year. C. P. Powell testified that "It was understood that I was to remit to them (appellant) one-half of the amounts that I sold the goods for, as soon as they were collected; and I was to keep the other onebalf. * The goods when received had the prices printed on them, just like they are shown in the book. I sold them at these pric es." It was further shown from the written evidence that the appellant consented, under the contract, that C. P. Powell could at any time "give up the work," and "that he may return the goods to us (appellant) and receive credit for them at the same prices they were furnished him." It is unnecessary to on the circumstances of each case. In the instant case there was no agreement to artificially enhance prices and suppress competition, nor to place any restriction in the free pursuit of a business authorized or prescribed by the laws of this state. The agreement here, as established by the jury findings and the undisputed evidence, constitutes, in legal effect, an agency contract. The contract by its terms is not in any sense, we think, a contract for the naked sale of goods to C. P. Powell with a restriction upon the sale by C. P. Powell of the same thereafter. A sales or agency contract, as here, is not violative of the Anti-Trust Act of this state. There is distinguishment between the instant case and the cases of Newby v. W. T. Rawleigh Co. (Tex. Civ. App.) 194 S. W. 1173, and Whisenant v. Shores-Mueller Co. (Tex. Civ. App.) 194 S. W. 1175. In the Newby Case the acts of the parties constituted a combination to restrain the further pursuit of the business of selling the products, because the products, as determined by the court, "had become the property of Newby." The Whisenant Case is similar to the Newby Case. In each of these two cases the court concluded the fact to be that the agreement was a naked sale of the products, and not a mere agency agreement. In the instant case it is clear that C. P. Powell was to do personal service in the selling of the products of appellant, and was to get one-half of the selling price of the products as his pay, and he could "give up the work" and return all unsold products at any time. These facts all negative an absolute unconditional sale of the products to C. P. Powell. The judgment is reversed, and we conclude that judgment should be here rendered on the findings of the jury and the undisputed evidence in favor of the appellant for the sum of $610.01, interest, and all costs of suit, and it is accordingly so ordered. WARE v. JONES et al. (No. 10517.) * set out the evidence at length. The appellees (Court of Civil Appeals of Texas. Fort Worth. Feb. 3, 1923.) 1. Appeal and error 76(1)-Finality of judgment depends on whether issues were finally determined. admitted the execution of the guaranty sued Castle & Smith, of Tyler, for appellees. LEVY, J. (after stating the facts as above). The question as to whether or not a given contract falls within the prohibition of the Anti-Trust Act of this state depends largely The finality of a judgment for purpose of appeal depends on whether the issues were finally determined. 80(3)-Judgment di recting application of proceeds of foreclosure sale to satisfaction of intervener's debt, and that balance be held subject to court's orders, held final; "final judgment." A judgment foreclosing a mortgage and superior liens of an intervener, directing that the proceeds of the sale be applied first to the satisfaction of intervener's debt, and that the bal For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ance "be held subject to the further orders of this court," and refusing to allow damages in defendants' cross-action for conversion of other tracts of land, and to decree title thereto in them, held a "final judgment" within Vernon's Sayles' Ann. Civ. St. 1914, art. 1997, and hence appealable; plaintiff only being entitled to such excess of the proceeds. [Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.] 3. Execution 171(3)—Court of Civil Appeals and Supreme Court cannot be challenged for want of jurisdiction by suit to restrain sale of property under execution thereon. A judgment on the merits by the Court of Civil Appeals, affirmed by the Supreme Court, cannot be challenged by a suit to restrain a sale of property under an execution issued thercon for want of jurisdiction on the ground that the judgment appealed from was not final. property to secure the payment of a promissory note for the sum of $2,820. One defense urged by Jones and wife was that they were husband and wife, and that the city property sought to be recovered by plaintiff was their homestead at the time the deed relied on by plaintiff was executed. They further alleged that, when the said deed of conveyance was executed, defendants also conveyed to plaintiff three other tracts of land situated in Tarrant county, aggregating 235 acres, upon plaintiff's agreement to pay off certain incumbrances outstanding against them, and hold the land in trust for defendants' benefit, with privilege of redeeming the same by paying to plaintiff the amount expended in the discharge of its incumbrance; that plaintiff thereafter refused to comply with said agreement, and sold two of the tracts to other persons. Defendants also alleged that the deed to the city property Appeal from District Court, Tarrant Coun- was understood by and between the parties ty; Ben M. Terrell, Judge. Suit by G. W. Ware against J. R. Jones and others, to restrain the sale of property belonging to plaintiff under an execution on a judgment of the Court of Civil Appeals, affirmed by the Supreme Court. From an order refusing a temporary writ of injunction, plaintiff appeals. Affirmed. thereto not to be a deed of conveyance, but merely a mortgage to secure plaintiff in the amount he might pay to discharge a lien outstanding against that property, and which plaintiff agreed to discharge. One of the three tracts of land situated in the county, and which appears not to have been sold by plaintiff, Ware, consisted of 39.8 acres. On that tract William Capps Ocie Speer and Wm. F. Young, both of held a lien, and he intervened in the suit Fort Worth, for appellant. and sought a foreclosure of that lien, and McCart, Curtis & McCart and John L. also a lien on the city property, which were Poulter, all of Fort Worth, for appellees. alleged to be superior to any liens or claims thereon by the plaintiff or the defendants. Upon the trial of that case the defendants Jones and wife were awarded title to the city property on their plea of homestead, but a foreclosure was decreed in favor of plaintiff, and also the intervener, of their respective liens against the city property, and also the 39.8 acres tract as against the defendants; the intervener's lien being declared superior to plaintiff's lien. The decree of foreclosure in favor of intervener, Capps, directed that the proceeds of the sale of both the 39.8-acre tract and the city property should be applied first to the satisfaction of the intervener's debt, the amount of which was stated in the judgment, and that the balance, if any, should "be held subject to the further orders of this court." DUNKLIN, J. G. W. Ware has appealed from an order of the judge of the district court declining him a temporary writ of injunction which was sought to restrain the sale of property belonging to him under an execution which had been executed on a judgment of the Court of Civil Appeals, reported in 233 S. W. 355, which judgment was affirmed by the Supreme Court, as reported in 242 S. W. 1022, the style of the case in those courts being Ware v. Jones. Those two judgments were rendered upon appeal from the district court, in which the suit for injunction was instituted, and the basis for the injunctive relief sought consisted in the contention presented by appropriate allegations that the judgment from which that appeal was prosecuted was not a final The trial of that case was before a jury judgment, and that therefore the judgments who by their verdict found in favor of the of the two appellate courts were void for lack| defendants on their cross-action damages of jurisdiction in those courts to render them. in the sum of $6,570.26, but the trial court That suit was instituted by G. W. Ware, refused to enter judgment in defendants' appellant here, against J. R. Jones and wife, favor for the damages so found. Upon apto recover title to a lot or parcel of land peal, the Court of Civil Appeals reversed situated in the city of Fort Worth, and plain-the judgment of the trial court in so far as tiff claimed title under a deed of conveyance it had refused to allow the defendants a reto him executed by defendants Jones and covery for the damages awarded by the jury wife. By alternative plea plaintiff asked on their cross-action, and rendered judgfor a foreclosure of a vendor's lien on the ment in defendants' favor for such dam For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes error. (248 S.W.) ages. But the judgment in all other respects was affirmed by the Court of Civil Appeals, and also by the Supreme Court on writ of The injunction sought in this suit was upon the theory that the judgment rendered by the trial court was not a final judgment, and therefore neither the Court of Civil Appeals nor the Supreme Court acquired jurisdiction of the appeal therefrom, principally because of the provision in the judgment that any excess remaining from the proceeds of the sales of the two pieces of property under foreclosure decreed to intervener, Capps, should be held subject to the further orders of the trial court. The agreed statement of facts presented upon this appeal contains the following: "It is also agreed without the necessity of introducing in evidence herein the pleadings in said original suit that all the matters and things adjudicated by the judgment above set forth were made issues by the pleadings, and that the property and the parties referred to in the said judgment were parties and issues in the said litigation made by the said pleadings. Except, the pleadings of the parties did not raise any issue as to the ownership of any balance of the proceeds of the foreclosure sales of land after satisfying the debts for which such foreclosures were ordered, unless such issue was necessarily made by the pleadings which did raise the issues of title to such lands in defendants Jones and wife, and liens with right in the intervener and plaintiff, Ware, of foreclosure against such lands." [1] Many other authorities might be cited to the same effect. But it will be observed that, according to a definition so given, the finality of the judgment depends upon whether or not the issues in controversy between the parties were finally determined. [2] The action of the defendants in seeking to recover damages upon the theory of a conversion of the three tracts of land situated in the county in effect conceded title in the plaintiff to those tracts, and the refusal of the court to allow damages upon their cross-action for such conversion was in effect an adjudication that they were not entitled thereto. And the refusal of the court to decree title to the defendants in the other three tracts was, in effect, a judgment that they were not entitled to that relief. And under the judgment rendered it would follow that the plaintiff, Ware, and no one else, would be entitled to any excess remaining of the proceeds of the sale of the property after satisfaction of the intervener's personal judgment recovered against the defendants. We are therefore of the opinion that it cannot be said that the judgment was not a final judgment. Davies v. Thompson, 92 Tex. 391, 49 S. W. 215; Graham v. Coolidge, 30 Tex. Civ. App. 273, 70 S. W. 231; Trammell v. Rosen, 106 Tex. 132, 157 S. W. 1161; Merle v. Andrews, 4 Tex. 200; Whitmire v. Powell, 103 Tex, 232, 125 S. W. 890. [3] We are of the opinion that the judgment of the Court of Civil Appeals and of The foregoing statement of what the plead- the Supreme Court in the former suit cannot ings were in the original suit has been made be challenged by this proceeding upon the by us from a reading of the judgment of the theory that those courts did not have jurisThe case of trial court and also of the Court of Civil diction to render the same. Washington Bridge Co. v. Stewart by the SuAppeals, referred to above. Article 1997, V. S. Tex. Civ. Statutes, reads preme Court of the United States, reported as follows: "Only one final judgment shall be rendered in any cause, except where it is otherwise specially provided by law." The present suit is not within any of such exceptions. In Hanks v. Thompson, 5 Tex. 8, the following is said: then, the "A final judgment must mean awarding the judicial consequences which the law attaches to the facts, and determines the subject-matter of controversy between the par ties." in 3 How. 413, 11 L. Ed. 658, was a second appeal from a judgment rendered after the cause had been remanded by the Supreme Court on a former appeal, and in that case the following was said: "We are now asked by the counsel for the appellants to permit him to re-examine the decree of the Circuit Court, upon its merits, affirmed as it was by the Supreme Court, upon the ground that the affirmance was made when this court had no jurisdiction of the case; the first appeal having been taken upon what has since been discovered to have been an interlocutory and not a final decree. The Supreme Court certainly has only appellate jurisdiction, In Warren v. Shuman, 5 Tex. 441, it is where the judgment or decree of the inferior held: court is final. But it does not follow, when it “A judgment is final only when the whole of renders a decree, upon an interlocutory and not the matter in controversy is disposed of." In T. & P. Ry. Co. v. Fort Worth Street Ry. Co., 75 Tex. 82, 12 S. W. 977, our Supreme Court said: "Until there is a judgment which leaves noth ing further to be litigated about in the case, unless it be something which relates to the execution of the judgment, there is no final judgment." a final decree, that it can, or ought, on an appeal from a decree in the same cause, which is final, examine into its jurisdiction upon the former occasion. The cause is not brought here in such a case for any such purpose. It was an exception, of which advantage might have been taken by motion on the first appeal. The appeal would then have been dismissed for the want of jurisdiction, and the cause would have been sent back to the Circuit Court for further proceedings. But the exception not having * * been then made of the alleged want of juris- To the same effect are the following de- WHITAKER et al. v. SURTEES et al. . (No. 6879.) COBBS, J. This suit was instituted by Harold Surtees, Marshall Surtees, and A. W. Surtees, as guardian of the persons and estates of the minors, Mary L. Surtees, Anthony Surtees, Leonard Surtees, and Alfred Surtees, as plaintiffs, who allege substantially that they are the owners of the property described in plaintiffs' first amended petition, subject to a life estate held by A. W. Surtees, as the surviving husband of their mother; that A. W. Surtees and his second wife, Dora Surtees, executed an oil and gas lease on said property to W. W. and G. W. Whitaker, and McBeth, which oil lease is own ed by the defendants, W. W., G. W., and E. E. Whitaker; that plaintiffs were not parties to said lease, and are the owners of the land covered by said lease, and were the owners of said land when the said lease was given, and said lease is recorded in the deed records of Bexar county, Tex., and constitutes a cloud on the title of plaintiffs; and they further allege that, since the filing of this suit, plaintiffs have executed an oil and gas lease on said property to A. W. Hobson, who has drilled an oil well on the said property producing oil in paying quantities; that defendants, G. W., W. W., and E. E. Whitaker, gave notice to the refinery not to take said oil, and asserted that they were the owners of the lease covering seveneighths of said oil, to plaintiffs' great damage; and plaintiffs prayed for a cancellation of said oil and gas lease in its entirety, and (Court of Civil Appeals of Texas. San Anto- for a permanent injunction restraining de nio. Feb. 14, 1923.) 1. Life estates, 12-Life tenant cannot take minerals out of remaindermen's land to their injury. A life tenant cannot bore for and take minerals out of the remaindermen's lands, to the injury of the remaindermen. 2. Life estates 12-Lessees, in oil and gas lease with holder of life estate of lands, held to acquire no rights thereunder as against remaindermen. fendants from asserting any rights in said oil on said property. Defendants, G. W., W. W., and E. E. Whitaker, filed a joint answer, consisting of a general demurrer, and a number of special exceptions, all of which were overruled, a general denial, and a cross action against plaintiffs and A. W. Hobson, in which they allege the purchase in good faith of a lease on said property in good standing and allege the payment of rental and acceptance by A. W. Surtees, and prayed judgment against said parties for their damages and for general and special relief. The court rendered judgment on a hearing canceling said lease in its entirety and removing the cloud from plaintiffs' title, and gave judgment to the defendants, G. W., W. W. and E. E. WhitaAppeal from District Court, Bexar Coun-ker, against A. W. Surtees, individually, for ty, Seventy-Third District; Robt. W. B. Terrell, Judge. The lessees in an oil and gas lease, executed by the holder of a life estate in the lands, acquire no rights whatever under such lease to mine and operate for oil and gas only on the land of the remaindermen, never before devoted to producing oil. the amounts paid under said lease, and permanently enjoining said, defendants from asserting any claim to the oil from said property, as prayed for by plaintiff. The facts are conceded-at any rate, they are very well established-that appellees hold title as the remaindermen to the Jand in controversy, and that appellants hold title to the lease as the life tenants or under the life tenant. The court found as a fact Lewright & Lewright, Carl & Swearingen, and W. H. Kennon, all of San Antonio, for appellants. Clamp, Searcy & Groesbeeck, of San An- that W. W. and G. W. Whitaker and G. V. tonio, for appellees. McBeth, when they obtained the lease from For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |