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Action by Ray Thompson and another | R. C. L. vol. 21, pp. 1263 and 1315; Standagainst T. L. Camp and another, doing busi- ard Enc. of Proc. vol. 20, p. 663. And that ness as the Denby Truck Company. From article 2119 of the statutes furnishes the judgment for plaintiffs, defendants bring | particular provision of the law as to the error. Reversed and remanded.

manner of issuing, serving and returning such J. N. Townsend, of Dallas, for plaintiffs process. Doak v. Biggs (Tex. Civ. App.) in error.

235 S. W. 959. These cases further hold that W. H. Russell, of Hereford, for defendants on an appeal from a judgment overruling in error.

the plea of privilege, rendered on such a

hearing, without the appearance of the deBOYCE, J. [1] Roy Thompson and wife fendants, the record must, in order to susbrought this suit against T. L. Camp and tain the judgment, afirmatively show proper Edwin Hobby, partners, doing business in service of the notice above provided for, and the name of the Denby Truck Company, of that in such case there is no presumption of Texas, to recover damages for the wrongful due service." Doak v. Biggs, supra. The ap

service, “even though the judgment recites taking by defendants of an automobile truck plication of these propositions to the facts from plaintiffs' possession. It was alleged that defendants had a chattel mortgage on

of this case requires a reversal of the judg.

ment. the truck, but before the maturity of their indebtedness, in violation of plaintiffs' rights, affidavit are sufficient to maintain the venue

[3] The facts stated in the controverting took possession of the same without plain: in Deaf Smith county. Focke v. Blum, 82 tiffs' consent; that plaintiffs later recovered Tex. 436, 17 S. W.770; Perry v. Stephens, 77 possession, when defendants again wrong. Tex. 246, 13 S. W. 984; Conner v. Saunders, fully took said truck by levy of sequestration, issued out of a suit brought by de 9 Tex. Civ. App. 56, 29 S. W. 1140.

Reversed and remanded. fendants against plaintiff Roy Thompson; that such trespasses were committed in Deaf Smith county, where this suit was brought.

Defendants filed pleas of privilege, regular under the statute, to be sued in Dallas

McCONNON & CO. V. POWELL et al. county, where they resided. Plaintiffs filed a

(No. 2608.) controverting affidavit, in which they repeated the statement of their petition, that (Court of Civil Appeals of Texas. Texarkana. the suit was for damages for trespasses Feb. 23, 1923. Rehearing Denied committed in Deaf Smith county. The court

March 8, 1923.) noted an order on the controverting affidavit, Monopolies w 17(1)-Contract to sell prodsetting a hearing thereon for November 17,

ucts of manufacturer in restricted territory 1921. On November 29th, judgment was ren for stipulated portion of selling price held dered without further appearance of defend

agency contract, and not violative of Antiants overruling the plea of privilege and Trust Act. on the merits for the plaintiff Roy Thomp A contract with a manufacturer for the son for the recovery of the sum of $2,700. handling and sale of its products in a restrictThis judgment recited that the defendants ed territory and for a stipulated portion of the were “duly served with copy of such con- selling price, and with agreement to return all troverting affidavit to said plea of privilege unsold products at any time and to terminate and the notation of the court thereon for the agreement, is a sales or agency contract more than ten days before same was heard.” and not violative of the Anti-Trust Act. No other evidence of service of such notice

Appeal from Smith County Court; D. R. appears in the record.

Pendleton, Judge. [2] The service of notice on the defendants, of the filing of the controverting affidavit,

Suit by McConnon & Co. against C. P. and the order of the court setting the same Powell and others. From a judgment for down for hearing, required by article 1903, defendants, plaintiff appeals. Reversed, and Revised Statutes, is jurisdictional. Brooks judgment for plaintiff. v. Wichita Mill & Elerator 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, Aldehtedness incurred by him to appellant. Mr. bright-Pryor Co. v. Pacific Selling Co., 126 Huddle and Mr. Hill, the appellees, signed Ga. 499, 55 S. E. 251, 115 Am. St. Rep. 108; | the guaranty, and the appellant brought the

(248 S.W.) suit against them to recover upon their writ-, on the circumstances of each case. In the ten guaranty. C. P. Powell was also sued, instant case there was no agreement to aras principal debtor; but he was dismissed tificially enhance prices and suppress compefrom the suit before trial, for lack of service tition, nor to place any restriction in the free upon him. The defense is that the contract pursuit of a business authorized or prescribed made between C. P. Powell and the appel- by the laws of this state. The agreement lant was illegal and unenforceable because here, as established by the jury findings and it was a sales agreement which violates the the undisputed evidence, constitutes, in legal Anti-Trust Law of the state. The case was effect, an agency contract. The contract by submitted to a jury on special issues, and its terms is not in any sense, we think, a upon the findings of the jury the court en contract for the naked sale of goods to C. tered a judgment in favor of the defendants P. Powell with a restriction upon the sale in the suit. It is contended on appeal that by C. P. Powell of the same thereafter. A the court should have entered judgment on sales or agency contract, as here, is not viothe jury findings and the undisputed evi- lative of the Anti-Trust Act of this state. dence in favor of the plaintiff in the suit. There is distinguishment between the in

It was admitted that the appellant and stant case and the cases of Newby v. W. T. C. P. Powell made an agreement pertaining Rawleigh Co. (Tex. Civ. App.) 194 S. W. to the bandling and sale of the products or 1173, and Whisenant v. Shores-Mueller Co. output of appellant. The terms of the agree- (Tex. Civ. App.) 194 S. W. 1175. In the Newment were, as found by the jury, that C. P. by Case the acts of the parties constituted a Powell should sell the manufactured products combination to restrain the further pursuit of appellant in the given territory of the of the business of selling the products, besouth balf of Smith county, and he was to cause the products, as determined by the have the exclusive right to sell and was to court, “had become the property of Newby." confine his sales of such products to that giv- The Whisenant Case is similar to the Newby en territory alone; C. P. Powell was to de- Case. In each of these two cases the court Fote his whole time to the sale of and was concluded the fact to be that the agreement to sell exclusively the products of appellant, was a naked sale of the products, and not and was to make weekly reports to the appel a mere agency agreement. In the instant lant of his sales, and was to make not less case it is clear that C. P. Powell was to do than three trips over the given territory each personal service in the selling of the prodyear. C. P. Powell testified that

ucts of appellant, and was to get one-half "It was understood that I was to remit to of the selling price of the products as his them (appellant) one-half of the amounts that pay, and he could "give up the work” and reI sold the goods for, as soon as they were

turn all unsold products at any time. These collected; and I was to keep the other one- facts all negative an absolute unconditional half.

The goods when received had sale of the products to C. P. Powell. the prices printed on them, just like they are The judgment is reversed, and we conshown in the book. I sold them at these pric- clude that judgment should be here rendered es."

on the findings of the jury and the undisputIt was further shown from the written ed evidence in favor of the appellant for the evidence that the appellant consented, under sum of $610.01, interest, and all costs of the contract, that C. P. Powell could at any suit, and it is accordingly so ordered. time "give up the work," and "that he may return the goods to as (appellant) and receive credit for them at the same prices they were furnished him." It is unnecessary to

WARE V. JONES et al. (No. 10517.) * set out the evidence at length. The appellees (Court of Civil Appeals of Texas. Fort Worth. admitted the execution of the guaranty sued

Feb. 3, 1923.) on. It was also proven conclusively that C. P. Powell owed appellants the sum of 1. Appeal and error Om76(1)-Finality of $959.16 for products sold by him, but that judgment depends on whether issues were $349.15 of that amount was incurred by ap

finally determined. pellant before the execution of the guaranty

The finality of a judgment for purpose of and for which amount the guarantors are appeal depends on whether the issues were not liable.

finally determined. Bulloch, Ramey & Storey, of Tyler, for ap. 2. Appeal and error 80(3)-Judgment di.

recting application of proceeds of foreclosure

sale to satisfaction of intervener's debt, and Castle & Smith, of Tyler, for appellees.

that baiance be held subject to court's orders,

held final; "final judgment." LEVY, J. (after stating the facts as above).

A judgment foreclosing mortgage and suThe question as to whether or not a given perior liens of an intervener, directing that the contract falls within the probibition of the proceeds of the sale be applied first to the satAnti-Trust Act of this state depends largely ) isfaction of intervener's debt, and that the balFan For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Writ of error granted February 14, 1923.


ance "be held subject to the further orders of property to secure the payment of a promthis court,” and refusing to allow damages in issory note for the sum of $2,820. defendants' cross-action for conversion of

One defense urged by Jones and wife was other tracts of land, and to decree title thereto that they were husband and wife, and that in them, held a "final judgment” within Ver; the city property sought to be recovered by non's Sayles' Ann. Civ. St. 1914, art. 1997, and hence appealable; plaintiff only being entitled plaintiff was their homestead at the time to such excess of the proceeds.

the deed relied on by plaintiff was executed. [Ed. Note. For other definitions, see Words They further alleged that, when the said deed and Phrases, First and Second Series, Final of conveyance was executed, defendants also Decree or Judgment.]

conveyed to plaintiff three other tracts of

land situated in Tarrant county, aggregating 3. Execution om 171(3)-Court of Civil Ap. 235 acres, upon plaintiff's agreement to pay peals and Supreme Court cannot be challeng- off certain incumbrances outstanding against ed for

want of jurisdiction by suit to restrain them, and hold the land in trust for defendsale of property under execution thereon.

ants' benefit, with privilege of redeeming A judgment on the merits by the Court of Civil Appeals, affirmed by the Supreme Court, the same by paying to plaintiff the amount cannot be challenged by a suit to restrain a expended in the discharge of its incumbrance; sale of property under an execution issued that plaintiff thereafter refused to comply thercon for want of jurisdiction on the ground with said agreement, and sold two of the that the judgment appealed from was not final. | 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.

thereto not to be a deed of conveyance, but

merely a mortgage to secure plaintiff in the Suit by G. W. Ware against J. R. Jones amount he might pay to discharge a lien and others, to restra in the sale of property outstanding against that property, and which belonging to plaintiff under an execution on

plaintiff agreed to discharge. a judgment of the Court of Civil Appeals,

One of the three tracts of land situated affirmed by the Supreme Court. From an

in the county, and which appears not to order refusing a temporary writ of injunc- have been sold by plaintiff, Ware, consisted tion, plaintiff appeals. Affirmed.

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. DUNKLIN, J. G. W. Ware has appealed Upon the trial of that case the defendants from an order of the judge of the district Jones and wife were awarded title to the court declining him a temporary writ of in- city property on their plea of homestead, but junction which was sought to restrain the a foreclosure was decreed in favor of plainsale of property belonging to him under an tiff, and also the intervener, of their respecexecution which had been executed on a tive liens against the city property, and also judgment of the Court of Civil Appeals, re- the 39.8 acres tract as against the defendported in 233 S. W. 355, which judgment was ants; the intervener's lien being declared affirmed by the Supreme Court, as reported superior to plaintiff's lien. The decree of in 242 S. W. 1022, the style of the case in foreclosure in favor of intervener, Capps, those courts being Ware v. Jones. Those directed that the proceeds of the sale of two judgments were rendered upon appeal both the 39.8-acre tract and the city propfrom the district court, in which the suit erty should be applied first to the satisfacfor injunction was instituted, and the basis tion of intervener's debt, the amount of for the injunctive relief sought consisted which was stated in the judgment, and that in the contention presented by appropriate the balance, if any, should "be held subject allegations that the judgment from which to the further orders of this court." 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. (pon 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

(248 S.W.) ages. But the judgment in all other respects [1] Many other authorities might be cited was afirmed by the Court of Civil Appeals, to the same effect. But it will be observed and also by the Supreme Court on writ of that, according to a definition so given, the error. The injunction sought in this suit finality of the judgment depends upon whethwås upon the theory that the judgment ren er or not the issues in controversy between dered by the trial court was not a final judg- the parties were finally determined. ment, and therefore neither the Court of [2] The action of the defendants in seekCivil Appeals nor the Supreme Court ac- ing to recover damages upon the theory of quired jurisdiction of the appeal therefrom, a conversion of the three tracts of land principally because of the provision in the situated in the county in effect conceded judgment that any excess remaining from title in the plaintiff to those tracts, and the the proceeds of the sales of the two pieces of refusal of the court to allow damages upon property under foreclosure decreed to inter their cross-action for such conversion was vener, Capps, should be held subject to the in effect an adjudication that they were not further orders of the trial court.

entitled thereto. And the refusal of the The agreed statement of facts presented court to decree title to the defendants in the upon this appeal contains the following: other three tracts was, in effect, a judgment

"It is also agreed without the necessity of in- that they were not entitled to that relief. troducing in evidence herein the pleadings in And under the judgment rendered it would said original suit that all the matters and things follow that the plaintiff, Ware, and no one adjudicated by the judgment above set forth else, would be entitled to any excess remainwere made issues by the pleadings, and that the ing of the proceeds of the sale of the propproperty and the parties referred to in the erty after satisfaction of the intervener's said judgment were parties and issues in the said litigation made by the said pleadings. Ex- personal judgment recovered against the cept, the pleadings of the parties did not raise defendants. We are therefore of the opinion any issue as to the ownership of any balance of that it cannot be said that the judgment was the proceeds of the foreclosure sales of land not a final judgment. Davies v. Thompson, after satisfying the debts for which such fore- 92 Tex. 391, 49 S. W. 215; Graham v. Coolclosures were ordered, unless such issue was idge, 30 Tex. Civ. App. 273, 70 S. W. 231; necessarily made by the pleadings which did Trammell v, Rosen, 106 Tex. 132, 157 S. W. raise the issues of title to such lands in defend- 1161; Merle v. Andrews, 4 Tex, 200; Whitants Jones and wife, and liens with right in the mire v. Powell, 103 Tex. 232, 125 S. W. 890. intervener and plaintiff, Ware, of foreclosure

[3] We are of the opinion that the judg. against such lands."

inent 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 he challenged by this proceeding upon the by us from a reading of the judgment of the theory that those courts did not have juristrial court and also of the Court of Civil diction to render the same, The case of Appeals, referred to above.

Washington Bridge Co. v. Stewart by the SuArticle 1997, V. S. Tex. Civ. Statutes, reads preme Court of the United States, reported as follows:

in 3 How. 413, 11 L. Ed. 658, was a second “Only one final judgment shall be rendered in appeal from a judgment rendered after the any cause, except where it is otherwise special. cause had been remanded by the Supreme ly provided by law.”

Court on a former appeal, and in that case

the following was said : The present suit is not within any of such exceptions.

"We are now asked by the counsel for the In Hanks v. Thompson, 5 Tex. 8, the fol- appellants to permit him to re-examine the de

cree of the Circuit Court, upon its merits, aflowing is said :

firmed as it was by the Supreme Court, upon “A final judgment must mean then, the the ground that the affirinance was made when awarding the judicial consequences which the this court bad no jurisdiction of the case; the law attaches to the facts, and determines the first appeal having been taken upon what has subject-matter of controversy between the par- since been discovered to have been an interties."

locutory 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

a final decree, that it can, or ought, on an apthe matter in controversy is disposed of."

peal from a decree in the same cause, which is In T. & P. Ry. Co. v. Fort Worth Street final, examine into its jurisdiction upon the Ry. Co., 75 Tex. 82, 12 S. W. 977, our Su- former occasion. The cause is not brought here

in such a case for any such purpose. It was an preme Court said:

exception, of which advantage might have been "Until there is a judgment which leaves noths taken by motion on the first appeal. The aping further to be litigated about in the case, peal would then have been dismissed for the unless it be something which relates to the want of jurisdiction, and the cause would have execution of the judgment, there is no final been sent back to the Circuit Court for further judgment."

proceedings. But the exception not having

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been then made of the alleged want of juris COBBS, J. This suit was instituted by diction, the cause was argued upon its merits, Harold Surtees, Marshall Surtees, and A. and the .decree appealed from was affirmed by W. Surtees, as guardian of the persons and this court.

Having passed upon the estates of the minors, Mary L. Surtees, Anmerits of the decree, this court has now nothing thony Surtees, Leonard Surtees, and Alfred before it but the proceedings subsequent to its mandate. So this court said in Himely v. Rose, Surtees, as plaintiffs, who allege substantially 5 Cranch, 314, 3 L. Ed. 111, and in the case of that they are the owners of the property deThe Santa Maria, 10 Wheat. 431, 6 L. Ed. 359. scribed in plaintiffs' first amended petition, Its decree became a matter of record in the subject to a life estate held by A. W. Surtees, highest court in which the cause could be final as the surviving husband of their mother; Jy tried. To permit afterwards, upon an appeal that A. W. Surtees and his second wife, Dora from proceedings upon its mandate, a sugges- .Surtees, executed an oil and gas lease on tion of the want of jurisdiction in this court, said property to W. W. and G. W. Whitaker, upon the first appeal, as a sufficient cause for


McBeth, which oil lease is own. re-examining the judgment then given, would certainly be a novelty in the practice of the ed by the defendants, W. W., G. W., and E. court of equity. The want of jurisdiction is a

E. Whitaker; that plaintiffs were not parmatter of abatement, and that is not capable ties to said lease, and are the owners of the of being shown for error to indorse a decree land covered by said lease, and were the upon a bill of review."

owners of said land when the said lease was To the same effect are the following de- given, and said lease is recorded in the deed cisions: Whyte v. Gibbs, 20 How. 542, 15 tutes a cloud on the title of plaintiffs; and

records of Bexar county, Tex., and constiL. Ed. 1016; Williams v. Bruffy, 102 U. S. they further allege that, since the filing 255, 26 L. Ed. 137; Gaines v. Rugg, 148 U. of this suit, plaintiffs have executed an oil S. 241, 13 Sup. Ct. 611, 37 L. Ed. 436; V. S. and gas lease on said property to A. W. v. Peralta, 27 Fed. Cas. 497. See, also, Lowell Hobson, who has drilled an oil well on the v. Ball Houtchings & Co., 58 Tex. 562. The judgment of the trial court is affirmed. tities; that defendants, G. W., W. w., and

said property producing oil in paying' quanE. E. Whitaker, gave notice to the refinery, not to take said oil, and asserted that they were the owners of the lease covering seven

eightbs of said oil, to plaintiffs' great damWHITAKER et al. v, SURTEES et al.

age; and plaintiffs prayed for a cancellation (No. 6879.)

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.)

fendants from asserting any rights in said

oil on said property. 1. Life estates, Coll 2-Life tenant cannot take Defendants, G. W., W. W., and E. E. Whitaminerals out of remaindermen's land to their ker, filed a joint answer, consisting of a geninjury.

eral demurrer, and a number of special ex. A life tenant cannot bore for and take min-ceptions, all of which were overruled, a erals out of the remaindermen's lands, to the general denial, and a cross action against injury of the remaindermen.

plaintiffs and A. W. Hobson, in which they 2. Life estates 12-Lessees, in oil and gas allege the purchase in good faith of a lease lease with holder of life estate of lands, held on said property in good standing and allege to acquire no rights thereunder as against re- the payment of rental and acceptance by A. maindermen.

W. Surtees, and prayed judgment against The lessees in an oil and gas lease, exe- said parties for their damages and for gencuted by the holder of a life estate in the lands, eral and special relief. The court rendered acquire no rights whatever under such lease to judgment on a hearing canceling said lease mine and operate for oil and gas only on the in its entirety and removing the cloud from land of the remaindermen, never before devoted

plaintiffs' title, and gave judgment to the to producing oil.

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. Ter- the amounts paid under said lease, and perrell, Judge.

manently enjoining said defendants from asSuit by Harold Surtees and others against erty, as prayed for by plaintiff.

serting any claim to the oil from said propG. W. Whitaker and others. From a judg.

The facts are conceded-at any rate, they ment for plaintiffs, defendants appeal. Af

are very well established-that appellees firmed.

hold title'as the remaindermen to the Jand Lewright & Lewright, Carl & Swearingen, in controversy, and that appellants hold title and W. H. Kennon, all of San Antonio, for to the lease as the life tenants or under appellants.

the life tenant. The court found as a fact 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

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