Couch v. State

688 S.W.2d 154, 1985 Tex. App. LEXIS 6430

• Court: Court of Appeals of Texas
• Decided: January 31, 1985
• Status: Published

Opinions

OPINION ON MOTION TO RECONSIDER

ORDER DISMISSING APPEAL

BROOKSHIRE, Justice.

On September 6, 1983, Appellant withdrew from the trial court registry the sum of $568,657.00 which was the total amount of the award of the Special Commissioners in this condemnation proceeding.

On June 4, 1984, in accordance with the verdict of the jury, the State was ordered to pay an additional $51,369.00 plus interest thereon from September 1, 1983, until paid. This order was signed by Honorable Ellis A. Oualline, Jr., Judge, County Court at Law # 1, Montgomery County.

Thereafter, on July 10, 1984, the State deposited into the court’s registry the sum of $55,829.48 which included interest to date and which sum represented the total, full and complete satisfaction of the judgment. This deposit by the State was approved by Judge Oualline.

Eight days later the Appellant moved to withdraw the entire $55,829.48. The trial judge immediately ordered the county clerk to issue and deliver a check payable to 0. Dean Couch, Jr., d/b/a Couch Mortgage Company, for the total amount. The attorney of record for the Appellant acknowledged receipt of a check in the total amount payable to the Appellant. The receipt is dated July 27, 1984. Thereafter, the said check was cashed and negotiated and “credited to the account of the within named payee, The Woodlands National Bank, The Woodlands, Texas”.

The correct general rule, we perceive, is set out in Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (Tex.1950). At 1004, the court wrote:

“A litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an appeal therefrom. That is the general rule which appears to be universally recognized. It was announced by this court in the early case of Matlow v. Cox, 25 Tex. 578. The rule is based on the principle of estoppel. It, however, is subject to the exception that ‘ * * * where the reversal of a judgment cannot possibly affect an appellant’s right to the benefit secured under a judgment, then an appeal may be taken, * * *.’ 2 Am.Jur., Appeal and Error, Sec. 215. Numerous authorities, approaching the exception from a slightly different angle, define it, in effect, in this language [language]: Where an appellant accepts only that which appellee concedes, or is bound to concede, to be due him under the judgment he is not estopped to prosecute an appeal which involves only his right to a further recovery.”

Our case is remarkably similar to Latimer v. State, 328 S.W.2d 242 (Tex.Civ. App. — Beaumont 1959, writ ref’d n.r.e.) After citing and following Carle, supra, the civil appeals court wrote:

“The case at bar is within the rule but not within the exception. Appellants have no legal assurance that upon another trial they would be awarded as much as was awarded by the judgment from which the appeal was taken. Appellee has never conceded and is not bound to concede that it is intrinsically indebted to appellants for as much as was awarded by the judgment....”

We find and hold that Latimer, supra, is dispositive of this appeal. We overrule the motion to reconsider order dismissing appeal. We dismiss this appeal as of January 31, 1985.

DISMISSED.