Opinion
No. 6572.
Decided March 4, 1936. Rehearing overruled April 8, 1936.
1. — Appeal and Error — Commissions — Stakeholder.
Where defendant admits owing commissions due on sale of real property but is in doubt as to whether they are due to plaintiff or others, whom he impleads, he places himself in the position of a stakeholder who, under the general rule, is denied the right of appeal, and having no rights to be affected cannot object to rulings as between claimants.
2. — Question of Fact — Jurisdiction — Judgment.
In a suit by agent for commissions on sale of real estate where defendant admits liability except as to amount, he has the right to complain of the judgment in that particular, and having claimed that it was excessive makes a question of fact over which the Supreme Court has no jurisdiction.
Error to the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.
The facts are stated in the opinion. Judgment in favor of plaintiff was reversed and remanded by the Court of Civil Appeals ( 59 S.W.2d 425) and plaintiff has brought error to the Supreme Court.
The case was referred to the Commission of Appeals, Section A, for their opinion thereon and the Supreme Court adopted same and ordered judgment entered in accordance therewith.
Judgment of Court of Civil Appeals reversed and cause remanded to that court with instructions.
D. A. McAskill and David C. Brown, both of San Antonio, for plaintiff in error.
W. C. Douglas, of San Antonio, for defendant in error.
Hugh E. Dixon sued Leopoldo Sanchez for commissions claimed to have been earned by him in procuring the sale of certain lands belonging to Sanchez situated in the Republic of Mexico. Sanchez filed an answer to the petition consisting of a special exception and certain special pleas. No general denial was interposed. In his answer he acknowledged that he owed a commission on the transaction, but was in doubt as to whether Dixon was entitled to any interest therein. Accordingly, he impleaded W. P. Wickline and A. W. Wormser and called upon them to assert their claims with that of Dixon so that their rights might be adjuciated. The answer did not admit the amount of the claim of Dixon, but contained an allegation that the land was paid for in part in exchange of other property, and that, as to the value of the property taken in exchange, the commission should be 2 1/2 per cent instead of 5 per cent. Wickline filed an answer disclaiming any interest. Wormser filed an answer joining issues with Dixon. The case was submitted to a jury upon special issues, to which it returned answers favorable to Dixon. Judgment was accordingly rendered in his favor against Sanchez for the full amount sued for with interest. As to Wormser and Wickline it was decreed that they take nothing. From this judgment Sanchez alone prosecuted an appeal to the Court of Civil Appeals, which court reversed the judgment of the trial court and remanded the cause thereto. 59 S.W.2d 425.
1, 2 Sanchez having admitted liability for a commission and having impleaded Wormser and Wickline, placed himself in part in the attitude of a stakeholder. The general rule is that a stakeholder is denied the right of appeal. He cannot object to rulings on issues between claimants, for his rights are not affected thereby. Graham Refining Co. v. Graham Oil Syndicate, 262 S.W. 142; Royal Neighbors of America v. Fletcher, 230 S.W. 476; 3 C. J., p. 625, Sec. 481. In this case, however, Sanchez by his answer did not admit the amount of Dixon's claim. He is therefore in a position to complain of the judgment of the trial court in that one particular. His pleading did not present the questions discussed in the opinion of the Court of Civil Appeals. By an inspection of the brief filed by him in that court it is revealed that he was there claiming that the judgment was excessive. That question is one of fact over which we have no jurisdiction. It appears that the Court of Civil Appeals has not passed upon the assignment presenting it. We, therefore, deem it advisable to remand the cause to that court for the purpose of having it pass upon that one question.
It is our order that the judgment of the Court of Civil Appeals be reversed and the cause remanded thereto, with instructions to affirm the judgment as between all parties except Dixon and Sanchez at all events and to make such disposition thereof as between these two parties as its ruling on the question of excessiveness may require.
Opinion adopted by the Supreme Court March 4, 1936.
Rehearing overruled April 8, 1936.