Zachry v. Robertson

I concur in the affirmance of the judgment in this case as indicated by the opinion of Mr. Justice HALL, but hazarding repetition, I desire to make these further observations.

It can scarcely be doubted that Zachry was the real plaintiff at interest in the suit originally instituted by Hutches. This is true as evidenced by the very carefully prepared and all-covering contract between him and Hutches. Hutches, also, may have had an interest in the outcome of the recovery sought by him, this need not be determined upon this appeal.

I am convinced that at least a part of Robertson's cross action is such that can properly be pleaded by him under Rule 97. There may be some serious doubt if Robertson should have prevailed in his cross action as against Hutches at a time when Zachry was not a named party cross defendant, that he could have had his judgment satisfied by execution against Zachry; but Robertson has made Zachry a co-cross defendant with Hutches by an amended pleading. To this amendment Zachry pleads his privilege and seriously urges it upon several theories, one being that irrespective of his previous relation to the suit, he had assigned all of his rights to Hutches before the amended pleading was filed. The purported assignment lends color to the fact that he was the real plaintiff at interest in the original suit as Robertson has asserted by his amended pleadings.

I believe that the manner in which the assignment from Zachry to Hutches came into this case, the absence of any evidence of its delivery and acceptance, and the applicable law to which I shall refer are controlling in the disposition of this appeal.

A Mr. John D. Cape, Vice President and General Manager of Transit Tower Corporation, of San Antonio, Texas, was called as a witness by counsel for Zachry. The witness knew Zachry as President of the corporation of which witness was Vice President; he thought he was acquainted with the signature of Zachry; counsel for Zachry exhibited to the witness an instrument and inquired "if that is Mr. Zachry's signature?" The witness answered, "To the best of my knowledge and belief it is." The instrument referred to was the purported assignment involved here. Zachry's counsel then offered it in evidence and it was admitted by the court over the objections of Robertson's counsel. The instrument bears date of July 15, 1947, and was acknowledged before a notary public on the same day.

The judgment of the court recites that, "all parties having appeared and announced ready," etc. Mr. Zachry did not testify in the case. The testimony of Hutches was by deposition; the date on which the deposition was taken is not disclosed. The record indicates that the same counsel representing Zachry at the venue hearing is also counsel for Hutches in the pending suit.

There is no evidence that the purported assignment was ever delivered by Zachry to or accepted by Hutches; the judgment shows Zachry was present but he did not testify; at the time of trial the instrument apparently came from Zachry's counsel to the witness and there is nothing more to indicate that Zachry had ever parted with it except to the participating counsel. There is no further inference that Hutches ever knew that it existed; he was not asked about it when his depositions were taken.

No request was made for fact findings and none were filed except on a matter not here involved. The court overruled the plea of privilege by an order which makes no fact findings concerning the assignment to Hutches by Zachry. Under the testimony above referred to, the court could have found that no effective assignment was ever made, delivered and accepted, in which event Zachry would undoubtedly be a proper cross defendant with venue in the forum which he had, through his alter ego Hutches, invoked when he instituted the original suit.

One theory upon which the trial court could have overruled the plea of privilege was that no effective assignment by Zachry to Hutches had ever taken place. It is the well settled rule of law in this state that where a case is tried to the court and no findings of fact and conclusions of law are filed by the trial court, the judgment will be affirmed if there is evidence to support it upon any theory in the case. Stated in another way, if the trial court's judgment can be sustained upon any theory presented by the pleadings and testimony it should be affirmed. Texas Creosoting Co. v. Hartburg Lbr. Co., Tex.Com.App., 12 S.W.2d 169; Patrick et al. v. Simpson et al., Tex. Civ. App. 168 S.W.2d 315, writ refused; Rasberry et al. v. Jones et al., Tex. Civ. App. 195 S.W.2d 947 (venue case); Marshall v. Smith, Tex. Civ. App. 199 S.W.2d 555. Likewise, it is the rule that if the judgment of the trial court is correct, although for a different reason than the one stated by the court, it should be affirmed. General Bonding Casualty Co. v. McCurdy, Tex. Civ. App.183 S.W. 796, 802, writ refused; Waco Development Co. v. McNeese, Tex. Civ. App. 209 S.W. 464, writ refused.

I think the correct judgment was entered by the trial court and under the facts delineated with respect to the purported assignment, a theory was presented in the case which would support the judgment entered and that it should therefore be affirmed.