Summary
dismissing writ of error because "no injury has occurred to the complaining party," and therefore nothing is presented for review "but an academic question of law"
Summary of this case from Longoria v. RutlandOpinion
No. 7011.
Decided March 30, 1938. Rehearing overruled June 1, 1938.
Practice in the Supreme Court — Assignment of Error — Writ of Error — Appeal and Error.
The Supreme Court has no authority to review a decision of the Court of Civil Appeals except upon the specific assignments contained in the petition for writ of error, and an appellant has no right to complain of errors which do not injuriously affect him or which affect only the rights of others.
Error to the Court of Civil Appeals for the Tenth District, in an appeal from McLennan County.
Suit by Mary Jane Grays and Josie Nichols against the Shell Petroleum Corporation and the Tide Water Oil Company (formerly the Tidal Oil Company) and others, in the form of a partition suit and asking for a receiver to take over and operate certain oil wells, drilled and producing, upon a 1/48 and 1/98 interest respectively in a certain tract of 140 acres of the J. Mosely Survey in Gregg County, Texas, which 1/48 and 1/98 interests were claimed by the plaintiffs. Defendants filed a plea of privilege, general exceptions and a general denial. Plaintiffs filed a controverting affidavit to the plea of privilege and the court, after a hearing, overruled the plea of privilege. The court also overruled the general exceptions to the application for a receiver and appointed a receiver to take over and operate the wells, to which action exception was taken and notice of appeal given. Separate appeals were taken to both of these actions of the court and both judgments were reversed and remanded ( 54 S.W.2d 1043). Numerous motions were filed and orders made by the Court of Civil Appeals. Upon a motion of the oil companies asking that the case be reversed and rendered instead of reversed and remanded, the court set aside its former order and certified certain questions to the Supreme Court, which were answered ( 122 Tex. 491, 62 S.W.2d 113), and said opinion was passed on by the Court of Civil Appeals ( 64 S.W.2d 605) to the trial court for its observance in its further proceedings. After the Supreme Court answered the certified questions and had overruled a motion for rehearing, but before the mandate came down the receiver appeared before the trial court and asked to be discharged with his fee and expenses, which request the trial court (two days after the mandate came down) granted and allowed the receiver $17,000 for fees and expenses. The Court of Civil Appeals affirmed this order ( 87 S.W.2d 289), and the oil companies have brought error to the Supreme Court.
The case was referred to the Commission of Appeals, Section B, for their opinion thereon and the Supreme Court adopted same and ordered judgment entered in accordance therewith.
The writ of error is dismissed.
Thompson, Mitchell, Thompson Young and W. K. Koerner, all of St. Louis, P. G. McElwee, of Longview, Allen Morton and Hiner Pannill, all of Fort Worth, Witt, Terrell Witt, of Waco, and Y. P. Broome, of Tulsa, Oklahoma, for plaintiffs in error.
Weatherby Rogers, of Waco, for defendants in error.
The factual background of the case before us is fully stated in the opinion of the Court of Civil Appeals, affirming judgment of the trial court.
In view of the disposition we make of this case, it will not be necessary to do more than briefly mention a few of the controlling facts.
Plaintiffs in error filed a plea of privilege which was overruled. A receiver was then appointed. Upon appeal from these orders, they were both reversed and cause remanded. Tidal Oil Co. v. Grays et al., 54 S.W.2d 1043, 64 S.W.2d 405; Shell Petroleum Corp. et al. v. Grays et al., 122 Tex. 491, 62 S.W.2d 113. Pending appeal the receiver acted to protect and preserve the properties in controversy, and before the final disposition of said appeal the final report of the receiver was approved, he was allowed to retain from the assets on hand the sum of $7500 as a fee, and was finally discharged. This final order was affirmed. Shell Petroleum Corp. et al. v. Grays et al., 87 S.W.2d 289. Writ of error was granted upon the first assignment reading as follows:
"The Honorable Court of Civil Appeals erred in holding that the district court did not err in allowing the receiver large fees and expenses because, the trial court erroneously overruled defendant's plea of privilege, and thereafter erroneously appointed a receiver, and defendants having appealed, by separate appeals, from said orders and having perfected said appeals, and pending such appeals the district court having entered an order in said cause discharging said receiver and allowing him to retain large assets of defendant for his fees and expenses; and thereafter, the Court of Civil Appeals having reversed the order overruling the plea of privilege and ordered the cause transferred to the district court of Gregg County, the reversal and such order vacated all subsequent orders and decrees of the district court."
Other assignments are regarded as raising substantially and only the question raised in the one just quoted.
"* * * the decisions uniformly hold that the Supreme Court has no authority to review a decision of the Court of Civil Appeals except upon the specific assignments contained in the petition for writ of error, * * *." 3 Tex. Jur., p. 297.
"An appellant or plaintiff in error may not complain of errors which do not injuriously affect him, or which merely affect the rights of others." 3 Tex. Jur., p. 1026.
There was no judgment entered taxing the costs of receivership against plaintiffs in error. Indeed the record affirmatively shows that the question of final liability for the costs of receivership was left open for decision by the District Court of Gregg County to which the case was transferred. The assignments here present for our determination the naked question of the alleged error of fixing the amount of the receiver's fees and costs, as distinguished from taxing such amounts against plaintiffs in error and ordering payment by them of such items. Nothing but an academic question of law is before us. Manifestly no injury has occurred to the complaining party by the mere determination of the amount of costs, which may be, or for that matter, may have already been paid by defendants in error. The property in controversy was jointly owned, and no attempt was made to show that the interest owned by parties other than plaintiffs in error, was not amply sufficient to take care of all these receivership costs. To illustrate the necessity for our present holding suppose the Gregg County District Court has already adjudged all such costs against defendants in error, who have willingly paid same. Plainly, in such case, any holding we might make would be an idle ceremony. The present record shows that a motion to tax such costs against defendants in error was filed but never presented to or tried by the District Court of McLennan County, and was transferred to the District Court of Gregg County for action by that Court as before mentioned. Unless and until it is shown that plaintiffs in error have been injuriously affected by some action of an inferior court, this Court obviously has nothing before it for decision.
A motion to dismiss the writ granted in this case has been recently filed.
It is granted. That portion of the order complained of in the application for writ of error presents nothing for review by this Court under the record before us.
Writ of error dismissed.
Opinion adopted by the Supreme Court March 30, 1938.
Rehearing overruled June 1, 1938.