Nicklas v. Ajax Electric Company , 1960 Tex. App. LEXIS 2367 ( 1960 )

GRAY, Justice.

Appellant, T. E. Nicklas, a former representative or salesman for Ajax Electric Company, Inc. filed this suit against Ajax for unpaid commissions.

Ajax is a Pennsylvania corporation with its home office in Philadelphia and has never been issued a permit to do business in Texas. It manufactures heating furnaces for sale together with parts therefor.

Appellant’s suit is founded on a written agreement between himself and Ajax wherein he is designated as representative for Ajax and its sole agent in the states of Texas, Louisiana and Oklahoma “for its industrial heat treating furnaces.” Appellant was to be paid a commission based on the selling price of the individual units and a commission of five per cent on orders for spare parts. The agreement provided:

“(4) The Representative’s services shall be available for performing any engineering service and maintenance in connection with furnace installations in the territory. The Representative shall also be responsible for starting and supervising the installation of all furnaces in the territory, as well as rendering continuing technical service after installation.”

Appellant ceased to be the representative or salesman for Ajax and it had named or appointed Southwest Engineering and Equipment Company, a Texas corporation with Fred Harmon as its president, as its representative or salesman.

Appellant alleged that Ajax was present and doing business in Texas through its agent Southwest and that service of citation may be had on said agent. Service of citation was had on Southwest.

On September 29, 1958, Michael J. Mc-Cloud, Jr., a practicing attorney, filed his request for:

“leave to appear before the Court as amicus curiae for the purpose of calling to its attention the fact that the Court is without jurisdiction to hear and determine the matters set forth in plaintiff’s original petition on file in this .cause for the reason that the named defendant above does not do business in the .State of Texas, and proper service upon said above named defendant has not been obtained, and, to await and serve the court’s convenience as it may elect to avail itself of the service of your petitioner.”

On the same day the trial court heard the request and entered the following order:

“leave requested by the said Michael J. McCloud, Jr., to appear before this Court in the capacity of amicus curiae for the purposes requested and for such other and further purposes as the Court may see fit to grant or extend, should be and the same is hereby granted in all things.”

On the same day (September 29, 1958) the said attorney filed a suggestion of want of jurisdiction because Ajax does not do business in Texas “to enable the court to have jurisdiction over it” and because Southwest is not an agent of Ajax for service. This pleading was sworn to by McCloud on September 27, 1958.

At a hearing before the trial court evidence was heard, the suggestion of the amicus curiae was sustained and the cause was dismissed at appellant’s cost.

Appellant’s two points are that the trial court erred in finding that it had no jurisdiction over Ajax and in failing to find that Ajax had entered an appearance.

It is our opinion that the second point must be sustained. Such holding disposes of the first point.

At the hearing the amicus curiae called two witnesses. The first was Mr. Means, sales engineer for Southwest and assistant to its president. On cross examination he testified that when Southwest received the citation, above mentioned, that it was sent to Ajax and that Ajax “told us that we would cooperate with Mr. McCloud.” The second witness, Mr. Harmon, president of Southwest, testified that he received the citation and immediately sent it to Ajax; that he called Ajax on the phone and talked to them about “this” lawsuit and was instructed to cooperate fully with Mr. McCloud.

In Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119, 120, the court said:

“A true amicus curiae is without interest in the litigation in which he appears. He is a ‘bystander’ whose mission is to aid the court, to act only for the personal benefit of the court. There are many authorities, but we deem it adequate to cite only a few.” Authorities cited.

The record does not show any direct contact between Ajax and Mr. McCloud but it does show that he was known to Ajax, that it adopted his action and that it gave instructions to the officers of Southwest to cooperate fully with him. It also shows that two days prior to asking and being granted leave to appear as amicus curiae Mr. McCloud swore to a pleading suggesting lack of jurisdiction over Ajax. This pleading was filed on the date leave was granted to appear as amicus curiae. These facts show that the interest of Mr. McCloud in the litigation was aligned with Ajax and was adopted by it. It shows he was not merely a bystander acting only for the personal benefit of the court.

The fact that leave was asked and was granted to Mr. McCloud to appear as amicus curiae does not prevent the facts supra from showing an appearance by Ajax because those facts show an appearance by Ajax through an attorney with whom it gave instructions for full cooperation in the lawsuit.

Amicus curiae cites, among other authorities, our own opinion in Roper v. Compania De Perforaciones Y. Servicio S. A., Tex.Civ.App., 315 S.W.2d 30, 34. Er. ref., n. r. e. The application for leave to appear as amicus curiae and the order granting leave to so appear in the above cause and the application and order in this cause are similar. However the facts are different. In the above cause we said that under facts different from the facts there “that an amicus curiae appearance may constitute a general appearance.” The facts in the case now before us constitute such general appearance by Ajax and its submission to the jurisdiction of the court for all purposes.

It is our opinion that the facts before us show that McCloud was acting for the interest of Ajax rather than “for the personal benefit of the court” and that he asked and obtained an order and judgment of the court issued in the exercise of its judicial functions and that Ajax was in court for the exercise of all such judicial powers as the court was authorized to exercise in the suit. Burger v. Burger, supra, citing Pacific American Gasoline Co. of Texas v. Miller, Tex.Civ.App., 61 S.W.2d 1024. To hold otherwise under the facts here would permit the office of amicus curiae to be subversed to the use of a litigant in the case.

The judgment entered by the trial court was error. Accordingly that judgment is reversed and the cause is remanded with instructions that it be reinstated on the docket for a trial on its merits.

Reversed and remanded with instructions.