author: HIGHTOWER, Jr., C. J. BROOKE, J.

text:
    LUTCHER et al. v. FULLER et al.
    (No. 290.)
    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 22, 1918.
    Rehearing Denied Feb. 6, 1918.)
    1. Appeal and Error &wkey;>G55(3) — Statement op Facts — Motion to Strike.
    Where the agreed statement of facts is not certified by the trial court as required by Rev. St. 1911, art. 1949, and it does not appear in the record that the facts stated are all the facts and the only facts upon which the judgment was rendered, a motion to strike the purported statement of facts will be granted'.
    2. Appeal and Error <®=643(2) — Record — Agreed Statement.
    Where an agreed statement of facts submitted to the trial court was stricken on appeal because not certified, no order by the trial court after expiration of the term at which the statement was submitted approving the same would be of efficacy, and a motion to reinstate “statement of facts” will be denied by the appellate court, in view of Rev. St. 1911, art. 1949, providing that the parties may submit a matter in controversy upon an agreed statement of facts, which statement so agreed to and signed and certified by the court to be correct and the judgment rendered thereon shall constitute the record of the cause.
    3. Appeal and Error &wkey;3907 (3) — Defective Record — Affirming Judgment — Presumption.
    Where errors assigned cannot be reviewed in absence of statement of facts and there is no error apparent on the face of the record, a judgment which could be properly rendered upon the pleadings will be affirmed, in the absence of a statement of facts.
    Brooke, J., dissenting.
    Appeal from District Court, Newton County; W. R. Blaekshear, Judge.
    Suit by John S. Fuller and others against Mrs. Frances A. Lutcher and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Holland & Holland, of Orange, for appellants. Wightman & Hancock, of Newton, for appellees.
   HIGHTOWER, Jr., C. J.

This was a suit in trespass to try title brought by appellees against appellants to recover title and possession of an undivided one-half interest in a certain 100-acre tract of land, a part of the Elijah Fuller survey in Newton county. The cause was submitted to the trial court without a jury as an “agreed case” under article 1949 of the Revised Statutes of this state. The court’s judgment was in favor of appellees for the land sued for, to which, judgment appellants duly excepted, and have brought the case here for review.

After the appeal to this court was perfected and in due time under the rules, appellees filed a motion to strike out what purported to be the statement of facts upon which the trial court’s judgment was rendered. The grounds of this motion were, substantially: (1) Because the purported agreed statement ■of facts was not signed and certified by the trial court as required by statute; arid (2) because it did not otherwise appear from the record that the purported agreed statement of facts were all the facts introduced in evidence below and upon which the judgment of the trial court was rendered.

On taking up this motion of appellees, we found in the record that which purports to be the agreed statement of facts, and which, after the style of the case, etc., is as follows:

“Now come the plaintiffs and defendants by their attorneys of record and file this statement as an agreed statement of facts, and agree that the same are all of the facts in this cause.”

Then follows, in separate paragraphs, a number of statements of fact, and then follows the signatures of counsel for the parties. This purported agreed statement of facts is nowhere signed or certified by the trial court, nor does it anywhere appear in the record that the facts stated in this agreement were all the facts and the only facts upon which the judgment of the trial court was rendered. This being found by this court to be true, we granted appellees’ motion, and struck out this purported statement of facts. This purported statement of facts was filed in the trial court on March 30, 1917, as shown by the file mark of the clerk, and the judgment of the trial court in this cause was rendered on March 21, 1917, and the trial court for that term adjourned on March 24, 1917. *

Subsequent to the order of this court striking out the statement of facts, as above stated. appellants filed with the clerk of the district court of Newton county, Tex., then in vacation, the following motion:

“John S. Fuller et al. v. Frances A. Lutcher et al. In the District Court of Newton County, Texas. Motion to. Enter Order Nunc Pro Tunc. To the District Court of Said County: Come defendants in the above cause, and show to the court that this cause was submitted on an agreed statement of facts, which said statement of facts was filed herein on March 30, 1917, as shown by the indorsement of the clerk thereon; that said statement of facts was submitted to the trial court prior to the rendition of' his judgment in this cause as the agreed statement of facts, duly signed by both counsel for plaintiffs and defendants, and was the only statement of facts in said cause, and the only statement of facts offered on the trial of said cause, and was considered by the trial court in arriving at his judgment entered in this cause, and the judgment of the trial court was based on said statement of facts so agreed to, and on no other evidence or facts of any kind or character. That before the rendition of said judgment, on, to wit, the 21st day of March, 1917, said agreed statement of facts was duly approved by the trial judge, and after its approval by him was considered by him as -the facts, and all of the facts in said cause,. upon which his judgment was rendered. That said statement of facts was filed with the clerk among the papers in said cause by counsel for plaintiffs. That the failure of the trial court to indorse his approval on said statement of facts in writing as of date on or prior to March 21, 1917, was an oversight, and said indorsement was not intentionally left off said statement of facts. That said statement of facts was in truth and in fact approved by the trial court on or prior to March 21, 1917, and the failure to indorse the approval of the trial court thereon was unintentional. That said statement of facts contains all the evidence introduced on the tidal of said cause, and was in all respects a complete and full statement of facts on which the judgment was rendered in said cause. Defendants pray that the approval of the trial court be entered upon said statement of facts nunc pro tunc; that is, that the court approve the same now as of March 21, 1917, and that the record in this cause be now corrected to the extent of having the • indorsement on said statement of facts of the approval of the trial judge as of date March 21, 1917. Defendants pray that said order be entered in vacation; that plaintiffs be duly notified of this motion, and that upon final hearing said order be fully and finally entered, and that said order be entered of record in the minutes of the district court of Newton county, and that said approval date as of March 21, 1917, in all respects and for all purposes.”

This motion was duly signed by the attorneys for appellants, and duly sworn to. There was attached to this motion the following affidavit of W. R. Blackshear, who was the presiding judge of the district court of Newton county at the time of the trial of this cause, but who at the time of the affidavit had resigned that office, to wit:

“W. R. Blackshear, being duly sworn, says that on March 21, 1917, he was the duly qualified and acting district judge of Newton county; that he was the judge to whom said cause named in the foregoing motion was submitted; that he was the trial judge presiding at said trial; that the facts stated in the foregoing motion are, within his knowledge, true and correct. [Signed.] W. R. Blackshear.
“Sworn to and subscribed before me by W. R. Blackshear, this 25th day of October, 1917. R. M. Prigmore, Notary Public, Tarrant County, Texas.”

Notice of the filing of this motion and service of same on appellees was duly waived by the attorneys for appellees. After this motion had been filed by the clerk of the district court of Newton county, the same was presented to Hon. W. T. Davis, who was then the regular district judge of the district embracing Newton county, in chambers, at Orange, Tex., and at a time when the district court of Newton county was not in session, and Hon. W. T. Davis made the following order on said motion:

“John S. Puller et al. v. Frances A. Butcher et al. In the District Court of Newton County, Texas. Before me, W. T. Davis, judge of the district court of Newton county, in chambers at Orange, Tex., on this day came on to be heard the motion of the defendants, Prances A. Lutcher et al., to enter an order nunc pro tunc of approval by the trial judge of the agreed statement of facts filed in this cause on March SO, 1917, and, it appearing to me that notice of filing of said motion has been duly waived by the attorneys for plaintiffs, and that said motion is duly supported by accompanying affidavits, it 'is my opinion that said motion should be and the same is in all things granted. It is therefore ordered, adjudged, and decreed by the court that the agreed statement of facts filed in this cause on March 30, 1917, be and the same is hereby approved by the trial court as of date March 21, 1917, and that an order be entered on the minutes of this court approving said statement of facts as of said date as fully and to all intents and purposes as though said in-dorsement of approval had been duly placed thereon by the trial judge on said date, and that said statement of facts be considered for .all purposes as duly approved by the trial court of date March 21, 1917, and the clerk of the district court of Newton county is hereby ordered to spread this order upon the minutes of said court in said cause.
“Done at Orange, Texas, this November 1, 1917. W. T. Davis, Judge District Court, Newton County.”

After obtaining the above order of the Honorable W. T. Davis, appellants filed in this court what is termed a “Motion to File Supplemental Transcript and Reinstate Statement of Facts,” which, after the style of the ease, is 'as follows:

“Come appellants in the above-entitled cause and show to the court that heretofore in this cause in this court motion was made by appel-lees to strike out the statement of facts in this cause on the ground that the same did not have indorsed thereon the approval of the trial judge, and said motion was sustained by this court, and said statement of facts stricken out.
“Appellants show to the court that subsequently to the order striking but said statement of facts appellants have duly filed in the trial court a motion to indorse said approval of the trial judge on said statement of facts nunc pro tunc as of date March 21, 1917, and said motion, having been supported by the proper affidavits, was submitted to the trial court in vacation after notice to appellees, and that the trial court in due form of law entered an order on said motion, in all things granting the same and ordering said statement of facts to be approved as of date March 21, 1917, and that said statement of facts should be considered as fully approved of said date as fully and to all intents and purposes as though such indorsement of approval had been duly placed thereon by the trial court on said date, which said motion and order of the trial court is- evidenced by a supplemental transcript, which is tendered herewith and made a part of this motion in verification of the statements herein contained.
“Appellants move the court now that an ordbr be entered granting to appellants permission to file said supplemental transcript as a part of the record in this cause, and- that this court enter an order considering said statement of facts as the proper and regular statement of facts in this cause duly approved and in form of law for all purposes.”

This motion is duly signed by counsel for appellants. After due consideration of this motion by appellants, a majority of this court is of the opinion that we are compelled to overrule the same.

As stated in the beginning, this cause was submitted to the trial court as an “agreed case,” under authority of article 1949, Revised Civil Statutes of this state, which article reads as follows:

“The parties may in any case submit the matter in controversy between them to the court upon an agreed statement of facts made out and signed by them or their counsel, and filed with the clerk, upon which judgment shall be rendered as in other cases; and, in such case, the statement so agreed to and signed and certified by the court to be correct, and the judgment rendered thereon, shall constitute the record of the cause.”

As stated above, the purported statement of facts in this case was not signed and certified by the trial court to be correct during the term at which the cause was tried, and, as held by us, it not appearing from the record otherwise that the purported statement of facts embraced all the facts and no others upon which the trial court’s judgment was rendered, this court struck oiit, upon motion of appellees, such purported statement of facts, and now the only question for determination by this court is whether this court would be authorized to consider as a statement of facts in this case that which purports to be such as shown by the supplemental transcript which appellants now pray permission to file and have' considered by this court. In considering this matter, we have reached the conclusion tfiat the contention made by appellants, to the effect that they were authorized and entitled to have said purported agreed statement of facts approved in the manner as attempted by them and as shown above, and to then file such statement and approval of the district court of Newton county in this court in the form of a supplemental transcript, and thereby authorize and compel the consideration of such statement by this court, cannot be sustained. We are of the opinion that article 1949 above referred to contemplates that where a controversy is submitted to the trial court as an “agreed case” under said article, the statement of facts so agreed to shall be signed and certified by the trial court to be correct, and that such certificate of the trial court must be made while such court is in session.

We are of the opinion that the case of Chickasha Milling Co. v. Crutcher, 141 S. W. 355, the opinion in which was written by the Tex-arkana Court of Civil Appeals, is practically decisive of the question now under consideration; and, the opinion of the court in that case being very full and the reasons for the conclusion reached being fully given, which we adopt, we content ourselves with a reference merely to that decision; and the motion of appellants to file the supplemental transcript for the purpose slated in the motion is overruled.

There are several assignments of error contained in appellants’ brief, but they are of such nature that none of them can be considered in the absence of a statement of facts upon which the trial court’s judgment in this cause was based; and, since there is no statement of facts before this court, and since the judgment rendered by the trial court is one that could be properly rendered upon the pleadings, and there being no error in the judgment apparent on the face of the record .before us, the trial court’s judgment is in all things affirmed. _

BROOKE, J.

I regret very much to be compelled to dissent from the opinion this day handed down by my friend and Associate, Chief Justice HIGHTOWER, for whom I have a high opinion, both as a man and as a lawyer. However, constrained by a sense of duty, I feel that I should file my dissent in this matter, believing as I do that the statement of facts should have been permitted to be filed as a part of the record in this case.

This cause was tried in the court below on an agreed statement of facts, and on a former day of this court such agreed statement of facts was stricken, out of the record on appeal, and upon motion of the appellees, based on the failure of such statement to have indorsed thereon the approval of the trial court. Subsequent to this action of the court in striking out the agreed statement of facts, appellants have presented in this court a supplemental transcript from the trial court, containing an application made by them in that court for ^n order of'that court to enter the approval of the trial court upon said statement of facts nunc pro tunc as of date March 21, 1917, together with the supporting affidavits therefor, waiver of service by appellees thereof, and the order of the trial court granting the motion, and ordering such approval entered nunc pro tunc.

Accompanying this supplemental record is the motion of appellant for this court to fully consider for all purposes the agreed statement of facts in this cause. This motion is, resisted.by appellees. The agreed statement of facts, after clearly designating the cause in the trial court, reads;

“Now comes the plaintiffs and defendants by their attorneys of record and file this statement as an agreed statement of facts and agree that the same are all of the facts in this cause.”

This is followed in due order by a recital of the various facts agreed upon, and the whole is duly signed by the record attorneys of the respective parties, and was filed in the cause during term time of the term of the trial court at which the' judgment was rendered. The statement does not appear, from any indorsement thereon, to have had the approval of the trial court. The third ground of error contained in appellant’s motion for new trial in the trial court is:

“The court erred in rendering judgment for the plaintiffs for the land sued for, because under the agreed statement of facts in this cause defendants were innocent purchasers for value of the property sued for, and entitled to recover as such.”

This motion, filed in the trial court, was acted on and overruled in due season by that court.

While article 1293 of the Revised Civil Statutes requires the agreed statement to be used on appeal to be signed and certified by the court, such approval is not necessary where it otherwise appears from the record that the agreed statement contains all of the-facts upon which the judgment of the trial court was based. Bomar v. West, 87 Tex. 300, 28 S. W. 519. It is only required that the appellate court be placed in possession, in. some authorized manner, of all the material facts, which form the basis of the judgment appealed from. State v. Connor, 86 Tex. 136, 23 S. W. 1103. Under the rules governing-district courts, the agreement signed by the attorneys in this cause and filed among the-papers, that the agreed statement contains all of the facts in this cause, becomes and is a part of the record. The agreed statement of facts, therefore, by agreement made in compliance with the rules of the trial court, and being a part of the record in this court, showing upon its face that it contains all of the facts in this cause, necessarily forms the basis of the judgment rendered and appealed from. I am of the opinion that the right to have the trial court, either in term time or in vacation, enter an order nunc pro tunc, giving to the agreed statement of facts the requisite evidence of its having been approved by the trial oeurt in term time, and as forming the basis of the judgment appealed from, and that it is proper to file in this court a supplemental transcript of such proceedings. Baum v. Corsicana National Bank, 32 Tex. Civ. App. 531, 75, S. W. 866; Thompson v. Field, 164 S. W. 1116.

I do not believe there is merit in the contention of appellees that the trial court had no jurisdiction to enter an order nunc pro tunc after its term had adjourned, and while the cause is on appeal in this court, for the reason that I believe that every court has the right to judge of its own records, and where it satisfactorily appears to it that an order was actually made, it may at any time direct such order to be entered on the record as of the time it was made. The records of a preceding term may be amended by inserting what has been omitted, either by the act or oversight of the court or clerk, and, if so amended, such record stands as if it had never been defective. Burnett v. State, 14 Tex. 455, 65 Am. Dec. 131; Cowan v. Ross, 28 Tex. 227; Wichita Valley Ry. Co. v. Peery, 88 Tex. 382, 31 S. W. 619; Chestnutt v. Pollard, 77 Tex. 88, 13 S. W. 852.

The case of Chickasha Milling Co. v. Crutcher, 141 S. W. 356, deals with an ex parte certificate given by a trial judge after adjournment of the term of court, and at a time and under circumstances making his act of no more authenticity than that of any other individual. There is nothing in that case, in my opinion, in conflict with the views here expressed. In that case, there was an attempt to have the trial judge make an order long after his right to make same had expired, while in this case there was an attempt to have the trial judge make an order making the record speak the truth as to what actually happened during the term, and would have been shown by the record at the time but for an oversight on the part of the court. In this case there was an orderly proceeding by which the court corrects a record by a nunc pro tune order, not one where an order is attempted to be made out of season and out of court. By reason of its continuing power over its record, the court has power to correct those records and make them speak the truth. The agreed statement of facts in this case was duly approved in term time by the trial court, and formed the basis of the judgment appealed from, and the trial court, in my opinion, had the right, by reason of its control of its records, to have its records speak the truth, and to enter the order nunc pro tunc for that purpose. Blum v. Neilson, 59 Tex. 380; Hickey y. Behrens, 75 Tex. 495, 12 S. W. 679.

Therefore the agreed statement of facts in this case should, in my opinion, be considered by the court; and, inasmuch as the cause was affirmed by an order of this court, entered at this term, on account of the fact that no statement of facts was of record, I am of the opinion that the said supplemental transcript from the trial court should "have been fully considered for all purposes in this cause.

In order that this court may have the entire proceedings before it in the consideration of this question, it will be, perhaps, necessary to incorporate the action had in the lower court with reference to having the order entered and granted, giving the appellant in the lower court permission to file said supplemental transcript as a part of the record in this cause, as follows, to wit:

“Come appellants in the above-entitled cause and show to the court that heretofore in this cause in this court motion was made by appel-lees to strike out the statement of facts in this cause on the ground that the same did not have indorsed thereon the approval of the trial judge, and said motion was sustained by this court and said statement of facts stricken out. Appellants show to the court that subsfequently to the order striking out said statement of facts appellants have duly filed in the trial court a motion to indorse said approval of the trial judge on said statement of facts nunc- pro tunc as of date March 21, 1917, and said motion, having been supported by the proper affidavits, was submitted to the trial court in vacation after notice to appellees, and that the said trial court in due form of law entered an order on said motion in all things, granting the same and ordering said statement of facts to be approved as of date March 21, 1917, and that said statement of facts should be considered as duly approved of said date as fully and to all intents and purposes as though such indorsement of approval had been duly placed thereon by the trial court on said date, which said motion and order of the trial court is evidenced by a supplemental transcript which is tendex-ed herewith and made a part of this motion in verification of the statements herein contained. Appellants move the court now that an order be entered granting to appellants permission to file said supplemental transcript as a part of the record in this cause, and that this court enter an order considering said statement of facts as the proper and legal statement of facts in this cause, duly approved and in form of law for all purposes. Hr. John Hancock, who resides in Beaumont, Tex., is attorney of record for appellees. Holland & Holland, Attorneys for appellants, Frances A. Butcher et al.”

—and giving the action of the lower court in granting the motion to enter the order nunc pro tune as follows:

“John S. Fuller et al. v. Frances A. Lutcher et al. In the District Court of Newton County, Texas. Motion to Enter Order Nunc Pro Tunc. To the District Court of Said County: Come defendants in the above cause, and show to the court that this cause was submitted on an agreed statement of facts, which said statement of facts was filed herein on March 30, 1917, as shown by the indorsement of the clerk thereon; that said statement of facts was submitted to the trial court prior to the rendition of his judgment in this cause as the agreed statement of facts, duly signed by both counsel for plaintiffs' and defendants, and was the only statement of facts in said cause, and the only statement of facts offered on the trial of said cause, and was considered by the trial court in arriving at his judgment entered in this cause, and the judgment of the trial court was based on said statement of facts so agreed to, and on no other evidence or facts of any kind or character*. That before the rendition of said judgment, on, to wit, the 21st day of March, 1917, said agreed statement of facts was duly approved by the trial judge, and after its approval by him was considered by him as the facts and all of the facts in said case, upon which his judgment was rendered. That said statement of facts was filed with the clerk among the papers in said cause by counsel for plaintiffs; that the failure of the trial court to indorse his approval on said statement of facts in writing as of date on or prior to March 21, 1917, was an oversight, and said indorsement was not intentionally left off said statement of facts. That said statement of facts was in truth and in fact approved by the trial' court on or prior to March 21, 1917, and the failure to indorse the approval of the court thereon was unintentional; that said statement of facts contains all the evidence introduced on the trial of said cause, and was in all respects a complete and full statement of facts on which the judgment was rendered in said cause. Defendants pray that the approval of the trial court be entered upon said statement of facts nunc pro tunc, that is, that the court approve the same now, as of March 21, 1917, and that the record in this cause be now corrected to the extent of having the indorsement on said statement of facts of the approval of the trial judge as of date March 21, 1917. Defendants pray that said order be entered- in vacation; that plaintiffs be duly notified of this motion, and that upon final hearing said order be fully and finally entered, and that said order be entered of record in the minutes of the district court of Newton county; -and that said approval date as of March 21, 1917, in all respects and for all purposes. Holland & Holland, Attorneys for Defendants.
“George E. Holland, being sworn, says that he is one of the attorneys for defendants in the above cause, and that the facts stated in the foregoing motion are, within his knowledge, true.
“Geo. E. Holland.
“Sworn to and subscribed before me, the undersigned authority, this the 30th day of October, 1917. J. E. Pattillo, Clk. Dist. Court, Orange County, Texas. [Seal.]
“W. B. .Blackshear, being duly sworn, says that on March 21, 1917, he was the duly qualified and acting district judge of Newton county; that he was the judge to whom said cause name'd in the foregoing motion was submitted; that he was the trial judge presiding in said trial; that the facts stated in the foregoing motion are, within his knowledge, true and correct. W. B. Blackshear.
“Sworn to and subscribed ..before me by W: B. Blackshear, this 25th day of October, 1917. B. Y. Prigmore, Notary Public, Tarrant County, Texas. [Seal.]
“Oct. 11, 1917.
“We hereby waive service of notice of filing of this motion. Wightman & Hancock, Attys. for Appellees.
“Order on Motion.
“John S. Fuller et al. v. Frances A. Lutcher et al. In the District Court of Newton County. Before me, W. T. Davis, judge of the district court of Newton county, in chambers at Orange, Texas, on this day came on to be heard the motion of the defendants Prances A. Lutcher et al. to enter an order nunc pro tunc of approval by the trial judge of the agreed statement of facts filed in this cause on March 30, 1917; and, it appearing to me that notice of the filing of said motion has been duly waived by the attorneys for plaintiff, and that said motion is duly supported by. accompanying affidavits, it is my opinion that said motion should be and the same is in all things granted. It is therefore ordered, adjudged, and decreed by the court that the agreed statement of facts filed in this case on March 30, 1917, be and the same is hereby approved by the trial court as of date March 21, 1917, and that an order be entered on the minutes of this court, approving said statement of facts as of said date as fully and to all intents and purposes as though such indorsement of approval had been duly placed thereon by the trial judge on said date, and that said statement of facts be considered for all purposes as duly approved by the trial court of date March 21, 1917, and the clerk of the district court of Newton county is hereby ordered to spread this order upon the minutes of said court in said cause.
“Done at Orange, Texas, this November 1st, 1917. W. T. Davis, Judge District Court, Newton County.
“The State of Texas, County of Newton: I, J. E. Boush, district clerk in and for Newton county, Texas, do hereby certify that the above and foregoing is a true and correct copy of defendants’ motion to enter order nunc pro tunc, together with the order of the court on said motion in cause No. 1478 John S. Fuller et al. v. Frances A. Lutcher et al., filed in niy office on the 1st day of November, A. D. 1917.
“Witness my hand and seal of office this the 2d day of November, A. D. 1917. J. E‘. Boush, Clerk, District Court, Newton County, Texas.”

In view of the premises, as I have said before, I am persuaded to believe that the majority of the court were in error in not considering the statement of facts, and therefore, I respectfully enter my dissent.
      ©=oFor other cases see same topic ana KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RASBURX, J.

license: Public Domain

text:
    SPILLMAN v. WESTON.
    (No. 7808.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 10, 1917.
    Rehearing Denied Feb. 9, 1918.)
    1. Attachment <&wkey;375(l) — Weongeul Attachment-Damages.
    Damages are not allowed merely because an attachment is levied, but are allowed when the writ is wrongfully issued for all actual loss directly and proximately resulting from the seizure of the defendant’s property, such as depreciation in value resulting from the seizure, or loss resulting from sacrifice in case of forced sale, and hence a levy on lands, being unattended by disturbance of possession, use, or enjoyment of the premises, generally affords no ground for the recovery of actual damages.
    2. Malicious Pbosecution <&wkey;67 — Malicious Attachment — Elements oe Damages.
    Where, duo to plaintiff’s malicious and wrongful attachment of defendant’s land, a pending negotiation for an additional loan on the land was prevented of consummation, and as a result defendant was unable to meet the interest on a prior loan, causing the holder to mature the entire indebtedness, place it with an attorney for collection, and advertise the land for sale, which defendant prevented by paying a bonus to a money lender to induce him to carry the debt so matured, such bonus and the attorney’s fees and advertising expense were not recoverable, there being no depreciation in the value of the land as a result of the levy, as the damages sought were too remote, and not the legal and natural consequence of the wrongful attachment.
    3. Malicious Pbosecution <&wkey;68 — Malicious Attachment — Exemplary Damages.
    Under a plea in reconvention for malicious attachment, where plaintiff had sustained no actual damages, no exemplary damages were recoverable.
    Error from Dallas County Court; T. A. Wort, Judge.
    Action by W. W. Weston against E. Spill-man. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Chas. E. Clint, D. B. Eades, and Eric Eades, all of Dallas, for plaintiff in error. John C. Harris and G. D. Hunt, both of Dallas, for defendant in error.
   RASBURX, J.

Appellee sued appellant in the court below for past-due debt, aided by attachment issued on affidavit that appellant was about to dispose of his property with intent to defraud his creditors. Appellant, by his pleadings, admitted the debt, but sought damages by reconvention on the ground, in substance, that the attachment was wrongfully and maliciously sued out, and specified certain actual and exemplary damages. At trial general demurrer to the plea was sustained, and the jury peremptorily instructed to return verdict for the debt, which was done, and judgment accordingly entered, from which this appeal is perfected. The only issue presented therefore is the court’s action in sustaining thé general demurrer. As a consequence, it is necessary to relate the substance of the material facts, admitted by the demurrer to be true, which are these: About two days prior to levy of attachment appellant informed appellee that he was about to secure a loan of $800, to be secured by a secondary lien on the land levied on, out of which he intended to pay the semiannual interest of $72, which would mature November 25, 1915, on a pre-existing note of $1,800 against said land, secured by deed of trust, and appellee’s debt; appellant had, in fact, applied for such a loan from one W. G. Scarff, which had been granted, and the money about to be advanced when the attachment was levied, and upon learning which said Scarff refused to advance the money; appellant was unable to secure money upon any other lands or from any other source save the land levied on by appellee, which the latter knew; when the semiannual interest matured November 25, 1915, appellant defaulted in its payment, and the owner of said $1,800 note, as he had the legal right to do, after waiting until February 19, 1916, declared the entire debt due and placed same with an attorney for collection, who advertised same for sale under the trust deed securing its payment, incurring an expense of $10 in that respect, and, which resulted in adding to the principal and interest an additional sum of $190.9S, attorney’s fees; in order to prevent a sale of the land appellant finally induced said Scarff, in consideration of a bonus of $150, to acquire said $1,800 note, accumulated interest, added attorney’s fees, and $10 incurred expense in advertising said land, who agreed to carry same for a reasonable length of time; the attachment was wrongful and without probable cause, and maliciously issued in order to vex and harass appellant, and as a result of which appellant was actually damaged in the amount of said attorney’s fees, the expense incurred in advertising his property, and the bonus paid said Scarff, and because of the malice of appellee in suing out said attachment, suffered exemplary damages in the sum of $645. As we have indicated, for the purpose of the demurrer the facts alleged are to be taken as true. Then, the question is, Are the items of expense enumerated and incurred by appellant as the result of the wrongful and malicious' levy recoverable?

The rule in this state on the question so raised is that damages are not allowed merely because attachment is levied, but are allowed, when the writ is wrongfully issued, for all actual loss directly and proximately resulting from the seizure of the defendant’s property, such as depreciation in value resulting from seizure or loss resulting from sacrifice in case of forced sale, and that hence a levy upon lands under our statutes, being unattended by disturbance of possession, use, or enjoyment of the premises, generally affords no ground for the recovery of actual damagesi Trawick v. Martin Brown Co., 79 Tex. 460, 14 S. W. 564; Drew v. Ellis, 6 Tex. Civ. App. 507, 26 S. W. 96; Hoover v. First Nat. Bank, 192 S. W. 1149. It is said in the case first cited, which is the ruling case, in effect, that in case an advantageous sale of lands already agreed upon is prevented of consummation by wrongful attachment, and direct loss results by subsequent depreciation in value, such loss would be recoverable, but that ordinarily a levy on lands where the defendant owes the debt can-have no such effect, since the defendant may, if he finds a purchaser, sell the land and discharge the debt despite the levy.

In the case at bar the claim is not that any direct and proximate loss to the land by depreciation in value has resulted from the levy, but that due thereto a pending negotiation for an additional loan thereon was prevented of consummation, due to which appellant was unable to meet a semiannual interest payment on another loan, which failure" in turn caused the holder of such other indebtedness to mature the entire debt, as be bad a legal right to do, and which act made it necessary, in order to prevent a sale of the land under trust deed, to pay a bonus of $150 to a money lender to induce him to carry the debt so matured. Thus it is obvious that no depreciation in value of the land is alleged as a result of the levy, and hence no direct loss thereto proximately resulting therefrom. At most, it is alleged that certain items of expense necessary to secure a loan to meet maturing debts were incurred as a result of the attachment. If the rule in Trawick’s Case contemplates only such damages as result from the land’s depreciation in value, however brought about, then it occurs to us that such items are not recoverable, since no depreciation of or loss to the land is alleged. In that case it was said, in substance, that the fact that attachment prevented a sale of lands, the proceeds of which were to be applied to payment of Trawick’s debts, could not form the basis of recovery • because too remote. A thing is too remote when it is not the legal and natural consequence of the act complained of, which in this case is to say that the contract between appellant and his creditor matured the debt for which the expense was incurred, not the levy of the attachment. If the damages sought in the case cited were too remote, it follows that those here sought are likewise, since in final analysis there is no distinction between damages which arise as a result of wrongfully preventing a sale, the proceeds of which were to be used in paying debts, and those which arise in wrongfully preventing a loan, the proceeds of which were to he devoted to the same purpose.

Finally, if we are correct in our conclusion that appellant’s plea in reconvention fails to disclose recoverable actual damages, it follows that he would not be entitled to recover exemplary damages.

For the reasons indicated, the judgment is affirmed.
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author: HIGHTOWER, Jr., C. J.

text:
    WESTERN UNION TELEGRAPH CO. v. TARTAR.
    (No. 300.)
    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 22, 1918.)
    1. Judgment <&wkey;256(l) — Failure to Deliver Message — Pleading and Peooe — Findings of Fact — Sufficiency.
    In action for failure to deliver message of probably fatal illness, where the complaint failed to allege that the message could have been delivered at any other time than on the day on which it was sent, or that any subsequent delivery would have enabled the addressee to have attended the funeral, or to have seen his sister alive, and the judge made the affirmative finding that there was no negligence on that day, judgment for the plaintiff could not stand, although the judge further found negligence on a subsequent day.
    2. Judgment <&wkey;248 — Pleading and Findings.
    A judgment must have support in the pleadings of the parties, regardless of the state of the evidence.
    Appeal from District Court, Orange County; W. R. Blackshear, Judge.
    Action by P. D. Tartar against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    • F. J. & C. T. Duff, of Beaumont, for appellant. J. T. Adams, Tom C. Stephenson, and E. L. Bruce, all of Orange, for appellee.
   HIGHTOWER, Jr., C. J.

This is an appeal from the judgment of the district court of Orange county in favor of P. D. Tartar, plaintiff below, against appellant, Western Union Telegraph Company, defendant below, awarding to the appellee $500 as damages for mental anguish suffered by appellee in consequence of - alleged negligence on the part of appellant in failing to transmit and deliver to appellee at Orange, Tex., a telegram announcing the serious illness of ap-pellee’s sister, then residing near Balling-er, Tex.

The cause was tried before the court without a jury, and at the request of appellant the trial court filed findings of fact and conclusions of law, upon which the judgment in this cause is based.

This court having reached the conclusion that the judgment of the trial court must be reversed for the reason that said judgment is without a basis in the pleadings to support it, if the findings of fact and conclusions of law by the trial court be given proper effect, we here now set out plaintiff’s petition, as the same appears in the transcript before us, as follows:

“Your petitioner, P. D. Tartar, hereinafter styled plaintiff, complaining of the Western Union Telegraph Company, hereinafter styled defendant, respectfully represents that plaintiff resides in Orange county, Tex., and that the defendant is a private corporation incorporated and existing under the laws of the United, States and doing business in Orange county, Tex., with Manió Bravo, its agent at Orange, Tex., who resides in said county, upon whom service may be had.
“(1) Plaintiff represents to the court that on the dates hereinafter mentioned defendant owned and operated a telegraph line from the town or city of Ballinger, in Runnels county, Tex., to the city of Orange, in Orange county, Tex., and for hire transmitted telegrams for the public generally between said points.
“(2) That on the 27th day of May, 1916, plaintiff resided in Orange county, Tex., and plaintiff’s sister, Mrs. H. _ C. Brunson, resided with her husband near said town of Ballinger; that on said date plaintiff’s said sister herein-before named was dangerously sick and not expected to live, and plaintiff was unaware of her such condition, and on such date, about the hour of 12 o’clock noon, there was delivered or caused to be delivered to the agent of the defendant at its office in the town of Ballinger as l aforesaid, for transmission to plaintiff in said city of Orange, a telegram, in substance as follows:
“‘Ballinger, Texas, 12:07 P. M.,
“May 27th, 1916.
“ ‘P. D. Tartar, Orange, Texas: Mother is dying, come at once, let Uncle Fayette know.
“ ‘[Signed] M. E. Brunson.”
“(3) That the sender of said message or the person who caused said message to be sent, to wit, A. E. Brunson, paid the agent of said defendant at Ballinger, at the time of the delivery of said telegram aforesaid, the sum of 50 cents, the customary and proper charge for transmitting such telegrams, and being the charge then and there demanded therefor by the agent of said defendant. The said agent of the defendant at Ballinger was then and there informed by the said A. E. Brunson, or caused to be informed by the said A. E. Brunson, a nephew of said P. D« Tartar, and the son of Mrs. IT. O. Brunson, of the facts and circumstances requiring a speedy transmission and delivery of said telegram. The said agent of the defendant at Ballinger then and there knew that facts and circumstances existed requiring a speedy transmission and delivery of said telegram. The said agent of defendant at Ballinger was then and there advised of the contents of said telegram, and the facts and circumstances therein stated, and that facts and circumstances-existed requiring the speedy transmission of said telegram to the agent of the defendant at Orange, who received said telegram, and knew, and was therein advised, of the facts and circumstances requiring a speedy and prompt delivery of said telegram.
“(4) That said telegram was not promptly transmitted by said agent at Ballinger, and-when said telegram was transmitted, the same was held by the agent of the defendant at Orange after the same was received by him from 12:59 p. m. on May 27, 1916, until May 30, 1916, at which last-mentioned date and hour same was delivered or caused to be delivered to plaintiff.
“(5) But plaintiff alleges that said telegram was in fact transmitted and received at defendant’s office in the city of Orange, Tex., by its agent in Orange, at 12:59 p. m. on the 27th day of May, 1916, but that said telegram was not delivered until thereafter, on the 30th day of May, 1916, although plaintiff was in the city of Orange at the time said message was received by the agent of defendant at Orange, Tex., until about 7 or 8 o’clock p. m. on said 27th day of May, 1916, and could easily have been found by defendant, or its agent, and said telegram could have been delivered promptly by defendant after the same was received by defendant at Orange.
“(6) That plaintiff’s said sister hereinbefore named died on the 29th day of May, 1916, at about 3:35 o’clock a. m., and was conscious pri- or to and from the 27th day of May, 1916, up to the time of her death.
“(7) That by the use of reasonable and proper diligence defendant could have transmitted and delivered said telegram on said 27th day of May, 1916, to plaintiff in said city of Orange, who was then and there ready to receive the same.
“(8) That by reason of the negligence of the defendant, its officers, servants, and agents, to properly transmit and deliver said telegram to plaintiff within a reasonable time, as aforesaid, plaintiff was prevented from thereafter seeing his sister hereinbefore named alive, and by reason and in consequence thereof lie has suffered great disappointment, grief, and mental anguish, to his damage in the sum of <¡>1,000.
“(9) That plaintiff’s sister hereinbefore named was buried at 5:30 o’clock p. m. on the 29th day of May, 1916, at and near the place of her death.
“(10) That by reason of the negligence of defendant, its officers, servants, and agents, to transmit and deliver said telegram within a reasonable time, as aforesaid, plaintiff was prevented from attending his said sister’s funeral, and by reason of and in consequence thereof he has suffered great disappointment, grief and mental anguish, to his damage in the sum of $995.
“(11) That if. said telegram had been promptly delivered to plaintiff, plaintiff could have and would have gone to Ballinger, Tex., and to the home and bedside of his sister, hereinbefore named, before her death, and could and would have attended her funeral, and would have derived great consolation therefrom.
“Wherefore plaintiff prays that defendant be cited to_ appear and answer herein, and that upon a trial hereof he have judgment against defendant for the sum of $1,995, damages sustained, for costs of suit, and for such other and further relief, general and special, in law or in equity, that he may be entitled to receive.”

Appellant answered the above petition by a general demurrer and special exception, the disposition of which is not shown by the record, and will therefore not be further mentioned here, and also by general denial, and also specially that at the time said message was sent and received in the town of Orange plaintiff was not a resident of said town, nor did he live within one mile of the corporate limits of said town; that his place of residence was more than five miles from said corporate limits of said town, and at the time was unknown to defendant, its agents or employes. Defendant further specially pleaded contributory negligence on the part of the sender of said message in failing to give a proper'address of the plaintiff, or the name of the place where plaintiff could be found.

The findings of fact and conclusions of law by the trial court appear in the transcript as follows:

“Findings of Facts.
“(1) On the dates hereinafter mentioned, defendant, Western Union Telegraph Company, owned and operated a telegraph line from the town of Ballinger, in Runnels county, Tex., to the city of Orange, in Orange county, Tex., and for hire transmitted telegrams for the public generally between said points.
“(2) On the 27th day of May, A. D. 1916, plaintiff, P. D. Tartar, resided in the city of Orange, Tex., and on said date plaintiff’s sister, Mrs. IT. C. Brunson, resided with her husband near the town of Ballinger, Tex., and on said date plaintiff’s said sister was dangerously sick, and not expected to live, and plaintiff was unaware of her such condition, and on said date about the hour of 12 noon there was delivered to the defendant at its office in the town of Bal-linger, for transmission to plaintiff in said city of Orange, a telegram as follows:
“ ‘Ballinger, Texas, 12:07 P. M.,
“ ‘May 27, 1916.
“ ‘P. D. Tartar, Orange, Texas: Mother is dying. Come at once. Let Uncle Fayette know. [Signed] A. E. Brunson.’
“(3) That the sender of said message, A. E. Brunson, paid the agent of defendant in Balling-er at the time of the delivery of the same for transmission the sum of 50 cents, which was the customary and proper charge for transmitting said telegram, and being the charge then and there demanded by the agent of the defendant.
“(4) That said telegram was promptly transmitted by defendant from Ballinger to Orange, and was received by defendant’s agent at Orange at 12:59 o’clock p. m., on May 27, 1916.
“(5) That upon the receipt of said message or telegram by defendant at Orange, at 12:59 p. m., defendant made inquiry at the post office at Orange for the addressee, P. D. Tartar, and mas informed by the party at said post office that said P. D. Tartar was believed to be then in the country; that plaintiff made inquiry for P. D. Tartar at the Holland Hotel in Orange, •and made inquiry of Lee Woodworth at the Jackson Grocery Company in Orange; that the messenger boys of defendant made inquiry in the business part of Orange for said P. D. Tartar. :
“(6) That at 1:19 on the 27th day of May, 1916, defendant’s agent at Orange sent a service message to Ballinger asking for a better address of the addressee; that at 3:30 p. m., on May 27, 1916, defendant’s agent received a service message from its agent at Ballinger, stating that better address could not be given, but to try the Holiness preacher, or the post office; that at 9 a. m. on May 28, 1916, defendant’s agent at Orange received a service message from its agent at Ballinger advising him to toy Richard Bland.
“(7) That at about 10 o’clock a. m. on May 28, 1916, defendant delivered said telegram to Richard Bland, in Orange, Tex., said Richard Bland receipting therefor.
“(8) That said telegram was not received by plaintiff, P. D. Tartar, until, to wit, May 30, 1916, at about 10 o’clock a. m.
“(9) That on May 27, 1916, and at about 6:30 p. m., the sender of said message authorized and instructed defendant’s agent at Ballinger to deliver said message to P. D. Tartar in the country, and guaranteed the payment of the charges and expenses necessary for such delivery.
“(10) That the said P. D. Tartar was well known in the city of Orange on and prior to the 27th day of May, 1916, and was in said city of Orange and in the business part of said city on said date from 10 a. m. until 6 p. m. of said date.
“(11) That said P. D. Tartar was at said time making his home with Richard Bland in the city of Orange, but for a few days previously had gone to the home of Walter Wilkinson, about 6 miles from Orange, in the country, and came into Orange with said Walter Wilkinson on said 27th day of May.
“(12) That the said P. D. Tartar is unmarried, and made his home with five or six different families in the city of Orange alternately; that he had one brother living at Mauriceville, in Orange county, Tex., about 11 miles from Orange, at which place he had all his mail addressed.
“(13) That the said P. 0. Tartar was not known to the agents of defendant in Orange, Tex., but the said P. D. Tartar had passed by the office of said defendant two or three times on said May 27, 1916.
“(14) That the ‘mother’ mentioned and referred to in said telegram was the sister of the said P. D. Tartar, and that the sender of the message, to wit, A. E. Brunson, was the nephew of the said P. D. Tartar, and the said ‘sister’ was Mrs. H. 0. Brunson.
“(15) That the said Mrs. H. C. Brunson died at 3:35 a. m. on May 29, 1916, and was conscious prior and from May 27, 1916, up until the time of her death, and the said Mrs. H. O. Brunson, plaintiff’s sister, was buried at 5:30 o’clock p. m. on the 29th day of May, 1916, near the town of Ballinger.
“(16) That if plaintiff had received said telegram on the 27th day of May, 1916, or any time prior to 4:30 p. m. of May 28, 1916, he could have and would have gone to Ballinger, and would have been present with his sister prior to her death, and if he had received said telegram at or prior to 4:30 p. m. on May 28, 1916, he could have and would have left Orange in time to attend, and could have and would have attended the burial of his said sister.
“(17) That by reason of plaintiff’s not having received said telegram in time to have seen his sister before her death, and by reason of not having received said telegram in time to have enabled him to have attended the funeral of his said sister, plaintiff suffered disappointment, grief, and mental anguish, and was deprived of the consolation he would have received in seeing her, his said sister, before her death, and in attending her funeral.
“(IS) That plaintiff has been damaged in the sum of $500.
“(19) That on the 27th day of May, 1916, the city of Orange had a population in excess of 5,000.
“(20) That plaintiff had a brother, Brack Tartar, residing in Orange, and that there were no other parties by the name of ‘Tartar’ residing in Orange county at said time, but that the city and telephone directories did not contain the name of any person by the name of Tartar, and that on said date P. D. Tartar had no place of business or occupation at said time.
“(21) That on the 27th, 28th, and 29th days of May, 1916, plaintiff, P. D. Tartar,, was temporarily visiting- Walter Wilkinson, who lived about six miles in the country from Orange, in Orange county, Tex.
“Conclusions of Law.
“Prom the foregoing facts I conclude, as a matter of law, that the defendant was diligent in undertaking to make delivery of said telegram on the day of May 27, 1916, but that the defendant was negligent in not making delivery of said telegram thereafter, and that by reason of said negligence said plaintiff has been damaged by defendant in the sum of $500.
“W. R. Blackshear,
“Judge Pirst Judicial District of Texas, Presiding.”

Prom the allegations of appellee’s petition, •as above copied, it will be readily seen that there is no allegation that the message in question could have been delivered to the ap-pellee at any other time than on the 27th day of May; that there is no allegation that any subsequent delivery would have enabled ap-pellee to have gone to Ballinger, either in time to have seen his sister alive or to have attended her funeral, and, taken as a whole, it is manifest that the pleading charges that appellant was guilty of negligence on the 27th day of May, 1916, in that it failed to deliver to appellee in the city of Orange on that day the message in question; that it is not alleged that the plaintiff could have been found at any place or that the message could have been delivered to him on any other date.

Now, the affirmative finding and conclusion on the part of the trial judge being to the effect that there was no negligence on the part of appellant in failing to transmit and deliver the message in question to appellee on the 27th day of May, 1916, as claimed by appellee, this judgment cannot stand, even though the trial court further found and concluded that appellant was guilty of negligence in failing to deliver to appellee said message subsequent to the 27th day of May, 1916. While it appears, as shown above, that there were other messages than that mentioned in the plaintiff’s petition, none of them were even indirectly mentioned or declared upon in appellee’s petition as having any connection with the message in question and de-dared on in tlie petition, or as constituting any part of the contract, the breach of which was made the basis of this suit.

We understand it to be the rule in this state, as announced and many times reiterated by our appellate courts, that a judgment must have support in the pleadings of the parties thereto, and that this is true regardless of what the state of the evidence may be. This is the contention made by appellant’s third assignment of error, and we must sustain it.

The other assignments of error, which challenge the judgment of the court on the ground of insufficiency of the evidence to show negligence on the part of appellant, in failing to deliver the message in question to appellee, will not be discussed, for the reason that we are of the opinion that a discussion of them is not necessary, and perhaps, in view of what is shown by the record in this case, it would not be proper to pass upon these assignments at this time.

We reverse the judgment of the trial court upon the proposition alone that there is no basis in the pleadings for the judgment, as we think we have shown above. Telegraph Co. v. Swearingen, 95 Tex. 420, 67 S. W. 767; Telegraph Co. v. Henry, 87 Tex. 165, 27 S. W. 63.

Judgment reversed, and the cause remanded. *
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