Alice Nat. Bank v. Edwards, 179

• Decision Date: 13 October 1966
• Docket Number: No. 179,179
• Citation: 408 S.W.2d 307
• Parties: ALICE NATIONAL BANK et al., Appellants, v. William R. EDWARDS et al., Appellees. . Corpus Christi
• Court: Texas Court of Appeals

Page 307

408 S.W.2d 307

ALICE NATIONAL BANK et al., Appellants, v. William R. EDWARDS et al., Appellees.

No. 179.

Court of Civil Appeals of Texas.

Corpus Christi.

Oct. 13, 1966.

Rehearing Denied Nov. 17, 1966.

Kenneth Oden, of Perkins, Floyd, Davis & Oden, Alice, Denman Moody, of Baker, Botts, Shepherd & Coates, Houston, Patrick J. Horkin, Jr., of Horkin, Nicolas & Nicolas, Corpus Christi, for appellants.

Frank W. Nesbitt, of Fischer, Wood, Burney & Nesbitt, Corpus Christi, for appellees.

OPINION

GREEN, Chief Justice.

This is an appeal from an order of the District Court of Kenedy County, Texas, denying to appellants a mandamus sought against appellee Hon. William R. Edwards, Special Judge in Probate in cause No. 348 pending in the County Court of Kenedy County.

In 1961, in cause No. 344 in the County Court of Kenedy County, the will of Mrs. Sarita K. East, deceased, and certain codicils thereto were admitted to probate without contest, and Alice National Bank, Jacob S. Floyd, and Louis Edgar Turcotte were named as Independent Executors of the estate. Floyd and Turcotte have since died, and the Bank is the sole remaining Independent Executor. Thereafter, certain parties purporting to be heirs of Mrs. East filed a will contest action, being No. 348 in the County Court of Kenedy County, to set aside the order of probate entered in No. 344.

A motion was filed by contestants in No. 348 to appoint a temporary administrator to take over and administer certain of the assets of the Estate, which motion was granted by the court over the objection of the Bank. Another motion was filed in said cause by contestants to remove the Bank as Independent Executor, and to enlarge the powers of the temporary administrator, or, in the alternative, to require the Bank to post a bond. This latter motion is now pending in the cause.

In order to secure evidence for discovery purposes, and for use on any and all issues raised in the pending cause No. 348 as provided in Rule 186a, Texas Rules of Civil Procedure, contestants caused to be issued and served a subpoena duces tecum to take the oral deposition of B. R. Goldapp, the executive vice-president of appellant Alice National Bank. This subpoena commanded Goldapp to produce at the time of the taking of his deposition a number of documents described on Exhibit A of the subpoena in paragraphs 1--19 thereof. Appellant Bank filed a motion as provided in Rules 177a, 186a and 186b, T.R.C.P. for protective orders as to items 2, 8, 11, 17, 18, and 19, ¹ requesting that these items be stricken from the subpoena duces tecum, and that contestants be instructed to refrain from questioning Goldapp with reference thereto. Upon a hearing, the probate judge entered his order overruling the motion of appellants, and denying all relief sought by them. However, the judge did postpone the date for the taking of the deposition.

Following the order of the probate judge, this action for a writ of mandamus was filed in the District Court of Kenedy County. In their petition, the appellants after stating the grounds upon which their prayer for relief were based alleged that the order of the probate judge 'was and is void and of no force or effect, that such order is patently violative of mandatory provisions of the law, and the probate judge has filed to perform the legal duty and obligation, or in the alternative, the ministerial duty of granting protective orders as prayed for in such motion.' Appellants prayed for a temporary injunction and a writ of mandamus ordering the probate judge to vacate and set aside his order overruling the Bank's motion for certain protective orders as aforesaid, and that he be required to enter an order relieving the witness B. R. Goldapp from producing the objectionable items, and directing that such witness not be questioned upon his oral deposition regarding any of such items and that any line of questioning looking toward any type of accounting or the attempted removal of the Independent Executor, or to enlarge the powers of the appointed temporary administrator be prohibited during the oral examination of the witness; and further asking for general relief. Temporary injunction to stay the taking of the deposition until further orders was entered by the Court.

After a trial before the court, at which the only testimony offered consisted of documentary evidence, the district judge entered his order denying appellants any of the relief sought, and dissolving the temporary injunction.

During the trial and prior to the time all parties rested, there was no offer by the appellant to show to the trial court for his inspection the documents and papers etc. referred to in paragraphs 2, 8, 11, 17, 18, and 19 of Exhibit A of the subpoena, and which the Bank objected to producing at the taking of the deposition, nor was there any tender, in sealed envelopes or otherwise, of any of such material in evidence. In appellants' reply brief filed in this Court, argument was made as follows:

'* * * From the order of the District Court in the present proceeding, the record is entirely devoid of any showing that the District Court even inspected the materials as to which protective orders were sought. It is clear that the District Court had jurisdiction to entertain the writ of mandamus here sought. Alice National Bank v. Edwards, 383 S.W.2d 482 (Corpus Christi Civ.App.1964, error ref'd n.r.e.). If the District Court had that jurisdiction, then it is clear that the Court had a duty to inspect these materials (which were sent up with the transcript in this case, Tr. 75 and 78). There is no showing in the record that the Court discharged that duty. The very failure of the Court even to inspect these materials is in and of itself fundamental error. * * *'

Thereafter appellees requested leave, in order to have the record speak the true facts, to file a supplemental transcript containing an order to supplement the record on appeal signed by the district judge who tried the cause, reading in part as follows:

'IT FURTHER APPEARING TO THE COURT, And it being a fact within the personal knowledge of this Court, that after the close of the evidence by all parties at the time of the trial of this cause in the District Court, the 'materials' which this Court is charged with a failure to inspect, were delivered to the undersigned District Judge by Kenneth Oden, one of the attorneys of record above named, for the purpose of examination and inspection by the undersigned District Judge, said materials being delivered in a sealed package; that the undersigned District Judge, in chambers, personally opened said sealed package, and personally inspected and examined each and every instrument and document therein contained, and did thereafter re-insert all of said materials in said package, and reseal the same; that after the undersigned District Judge had inspected and examined each such instrument and document, and after said Judge had duly considered the same and the contents thereof, said District Judge did announce his ruling in this cause and did thereafter sign and enter the final judgment from which said appeal has been perfected, and did return said sealed Packed (sic) to the said Kenneth Oden; and,

IT FURTHER APPEARING TO THE COURT That the above described action of the District Judge is material to a proper disposition of said appeal within the meaning of Rule 428, T.R.C.P., and that such actions do not, and could not, appear in the record on appeal in either the Statement of Facts or the Transcript by reason of the fact that the above described actions of the District Judge were taken after the close of the evidence and in the privacy of his chambers, and that, therefore, the trial court should direct a supplemental record to be certified and transmitted by the Clerk of the trial court supplying such omitted matter:'

Over appellants' objections, we grant leave to file this supplemental transcript in order to have the record speak the true facts as to this matter. Rule 428, T.R.C.P.; Tucker v. Boyd, 156 Tex. 262, 293 S.W.2d 841, on rehearing, p. 843; Murray v. Murray, Tex.Civ.App., 350 S.W.2d 593, on rehearing, p. 600.

Even in the absence of this supplemental order of the trial court, the record reflects that documents which appellants contend are those which appellees sought to have produced by the subpoena duces tecum (although not in any manner mentioned or...