Houston Belt & Terminal Railway Co. v. Texas & New Orleans Railroad

GRAVES, Justice. This appeal is from a judgment of the 61st District Court of Harris County, Honorable Ben F. Wilson, presiding judge, sitting without a jury, in favor of the appellee against the appellants, substantially to this effect: The court entered a declaratory judgment under Vernon’s R.S. Article 2524-1, construing the contract existing between the parties in the manner contended for by the T. & N. O., that is, that the trackage owned by T. & N. O. and covered by such contract, which was dated November 18, 1929, and the supplements thereto, could be used only by the T. & N. O. and I.-G. N., and by the appellant, Houston Belt & Terminal Railway Company, when it was acting as agent for the I.-G. N. In other words, the court, at that hearing, so determined that the situation before it justified the application thereto of the Declaratory Judgments Act, R.S. Article 2524-1, and so applied its provisions. In this Court, through three stated points of error, appellants protest against the entry of such final judgment against them, “at the conclusion of the hearing on the application for a temporary injunction,” as follows: First “The Court erred in entering final judgment against the defendants at the conclusion of the hearing on an application for a temporary injunction because : “(a) The case was never set for trial on the merits, the setting being only on an order to show cause why the temporary injunction should not be granted. “(b) Defendants had no notice that the Court was treating the hearing on the show-cause order as a non-jury trial on all issues of the case until after all parties had rested. “(c) Defendants were deprived of the right to request trial by jury, a fundamental error.” Second “The Court erred in entering final judgment against the defendants, at [387] the conclusion of the hearing on an application for a temporary injunction without a setting of the case and notice to the defendants that the case would be tried on the merits.” Third, “The Court erred in entering final judgment against the defendants, at the conclusion of the hearing on an application for temporary injunction, because this procedure, in effect, deprived the defendants of the right of trial by jury. “(a) Since defendants were not entitled to trial by jury on the hearing on the application for a temporary injunction, they still had a right to demand trial by jury on the merits, and the surprise election of the District Court, at the conclusion of the hearing, to treat the hearing as a trial on the merits, came at a time when defendants had not waived trial by jury; and such action came long before defendants had béen put to an election as to whether they desired trial by jury.” They support the stated points by citing these authorities: Galveston & W. Railway Co. v. City of Galveston, Tex.Civ.App., 137 S.W. 724; Haden Employees’ Association v. Lovett, Tex.Civ.App., 122 S.W.2d 230; James v. E. Weinstein & Sons, Tex. Com.App., 12 S.W.2d 959; Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549; art. V, Sec. 10, Constitution of Texas, Vernon’s Ann.St.; Rule 216, Texas Rules of Civil Procedure; 4 Tex.Jur.Supp., Sec. 21, page 133. None of appellants’ presentments, it is determined, should be sustained. A complete answer, it is thought, to all of appellants’ presentments is thus stated by the fourth counter-point in the brief of appel-lee, as follows: Fourth “Defendants are not entitled to a new trial, for they have made no showing that the failure to have a jury trial caused them harm or deprived them of any constitutional right, and a demand for a jury trial cannot be made for the first time on this appeal.” The appellee, in turn, cites in support of its answer these Texas cases. Buttrill v. Occidental Life Ins. Co., Tex.Civ.App., 45 S.W.2d 636; Kegans v. Williams, Tex. Civ.App., 214 S.W.2d 799 (writ ref.); Public Indemnity Co. v. Pearce, Tex.Civ. App., 56 S.W.2d 906 (writ dism.) ; Hickman v. Smith, Tex.Civ.App., 238 S.W.2d 838 (writ ref.); Dallas Joint Stock Land Bank v. State ex rel. Cobb, Tex.Civ.App., 133 S.W.2d 827, affirmed 135 Tex. 25, 137 S.W.2d 993; Schroeder v. Texas & Pacific Ry. Co., Tex.Civ.App., 243 S.W.2d 261. It seems obvious to this Court, from its examination of the whole surrounding circumstances, that the trial from which the appeal so comes to it here, was not one merely on the hearing of an application for a temporary injunction, as appellants so earnestly contend in this Court; but that all the parties, appellants included, considered it a trial on the merits under j.he Declaratory Judgments Act, and since'the record fails to show that at the time of this determination by the trial court, there was any lack of propriety in either the procedure there, or the judgment announced at the time. In other words, under the court’s construction of the contract between the parties of November 18, 1929, and their having lived under it successively thereafter until the date of the trial of this cause be:low in August of 1954, it regarded the action as one for a declaratory judgment. After all, there was little, if anything, fundamentally involved, except a proper construction of the contract between the parties so dated back on November 18, 1929. Neither is there any contention upon appellants’ part that it had, or cóuld have gotten, any evidence which might have properly led to a different judgment, Neither do they argue on this appeal that, were they granted a new trial, they could or would present evidence which would justify a different judgment from ;that so rendered [388] by the trial court. Indeed, our authorities appear to have decided the only question appellants do attempt to raise here, contrary to its contention, to wit, these: Huffman v. Alexander, Tex.Civ.App., 276 S.W. 959; Perry v. Jaggers, Tex.Civ.App., 9 S.W.2d 143 (writ dism.); Bradshaw v. Holmes, Tex.Civ.App., 246 S.W.2d 296 (writ ref.). These conclusions require an affirmance of the judgment. It will be so ordered. Affirmed. HAMBLEN, C. J., concurs in the order of affirmance only.