Basham v. Smith

• Decision Date: 05 July 1950
• Docket Number: No. A-2650,A-2650
• Parties: BASHAM et al. v. SMITH et al.
• Court: Texas Supreme Court

Page 297

233 S.W.2d 297

149 Tex. 279

BASHAM et al. v. SMITH et al.

No. A-2650.

Supreme Court of Texas.

July 5, 1950.

On Rehearing Oct. 4, 1950.

Mike McKool, Dallas, for petitioners.

Bonney, Paxton & Wade and J. B. Look, Jr., Dallas, for respondents.

GARWOOD, Justice.

The Court of Civil Appeals reversed and remanded this cause in which the petitioners, Basham et al., as plaintiffs, had judgment on a verdict in the district court for statutory triple damages and attorney fees under Title 50 U.S.C.A.Appendix, §§ 925(e) and 1895 by reason of alleged rental overcharges collected by their landlady, a Mrs. Aldredge, testatrix of the defendant-respondents, Bayard Martin Smith and wife, who were respectively independent executor and trustee under the will. 227 S.W.2d 853. The suit was begun against the testatrix, but on her death before trial the respondents were substituted as defendants in a representative capacity, and upon their filing what was in effect an answer on the merits, judgment was rendered against them as executor and trustee respectively. While the trial court record reflects the status of respondent Bayard Martin Smith as 'executor' only, it was made to appear without controversy upon the appeal that his true status was that of independent executor.

The reversal below rested primarily on the ground that the claim should have been first presented in probate and, under Art. 3314, Vernon's Annotated Civil Statutes, could not be enforced by independent suit in the district court, 'because plaintiffs have neither alleged nor proved that the defendants (trustee, executor or devisees) had received any property of the deceased charged with the statutory lien for payment of their debts against the deceased.' Though with reservations as to whether the court's actual disposition of the appeal was not justified on other grounds, we granted the writ to review the ruling mentioned because of its importance in daily practice.

The ruling, as respondent in effect now concedes, is erroneous. The action was indisputably one against an independent executor in charge of an estate, which is altogether different from a claim against an estate being administered by a nonindependent executor or an administrator or a suit against heirs or beneficiaries of a will to reach property of the estate in their possession. The 'applicable statute' is not Art. 3314, supra, which deals with the vesting of estates of decedents subject to their debts, but Art. 3437, which immediately follows the article providing for independent administration under a will and reads:

Art. 3437. Creditor may sue executor.-'Any person having a debt or claim against the estate may enforce the payment of the same by suit against the executor; and, when judgment is recovered against the executor, the execution shall run against the estate of the testator in the hands of the executor that may be subject to such debt. The executor shall not be required to plead to any suit brought against him for money until after one year from the date of the probate of such will.'

Referring to this and other articles of the same chapter, this court has said: 'The statutes do not contemplate that the estate should be entirely withdrawn from the jurisdiction of the probate court, but that the appointment of an independent executor withdraws the estate from the supervision and control of the probate court, except in so far as some other statute may authorize the court to exercise its jurisdiction; and so long as it remains in the hands and under the control of the executor, the probate court has no jurisdiction to approve a claim against the estate. * * * The district court or county court, and not the probate court, has jurisdiction of all claims against the estate, as in any other cause of action not regulated by a special statute.' Rowland v. Moore, 141 Tex. 469, 174 S.W.2d 248, 249. Art. 3437, of course, restricts execution to assets of the estate in the hands of the independent executor and in the instant case will be read into the judgment against the 'executor', so there is no possibility of the latter being liable in his individual capacity, while as to Mrs. Smith, who is trustee, she would obviously be entitled to reimbursement from the trust estate for any liability adjudged against her. Without the formalities incident to a claim against an estate represented by an administrator or nonindependent executor and without reference to the conditions referred to by the court below, the claimant any properly sue an independent executor forthwith in the district or county court, according to the character of his claim, subject to the right of the defendant, which may be waived, to abate the suit until expiration of a year after the will was probated. Anderson v. Hunt, Tex.Civ.App., 122 S.W.2d 345, er. ref.; Ewing v. Schultz, Tex.Civ.App., 220 S.W. 625, er. ref.; Kopplin v. Ewald, Tex.Civ.App., 70 S.W.2d 608, cited in Rowland v. Moore, supra; Hutcherson v. Hutcherson, Tex.Civ.App., 135 S.W.2d 757, er. ref. The answer of the defendants in the instant case was a waiver of any right to abate the suit for a year. The reversal below cannot therefore be sustained on the ground that the suit as pleaded and tried was not a proper one for the district court.

Petitioner contends that the court below erred further in not dismissing respondents' appeal, but here we do not agree. The argument is that the appeal was made and the appeal documents filed too late, since the corresponding periods began to run from June 14, 1949, that is, 30 days after the filing of respondents' amended motion for new trial on May 14, which petitioners say was never 'presented' under Rules of Civil Procedure, Rule 330(j), within the 30-day period and therefore stood overruled by operation of law on June 14, although it was actually argued thereafter on June 18 and an order overruling it entered on June 21. The original appeal record not showing whether the motion was 'presented' before June 14, the court below permitted the appellants (respondents here) to bring up a supplemental record to clarify the point. This they did by procuring on September 24 and bringing up an order of the trial court which placed in the minutes as of June 7, or nunc pro tunc, an entry reciting that the motion was 'presented' in open court on June 7 (only 24 days after it was filed) and thereafter taken under advisement from day to day until it was argued on the 18th and overruled on the 21st. The pleadings and evidence in connection with the nunc pro tunc order were also brought up. The procedure adopted by the Court of Civil Appeals was well within its powers, and after review of the supplemental record, we concur in that court's view that the amended motion for new trial should be taken as 'presented' on June 7, so that it was not overruled by operation of law on June 14, the 30th day of its filing. While in such cases the safer practice for the party seeking a new trial is to procure a written agreement from opposing counsel, who ordinarily should not refuse it, we cannot say that the nunc pro tunc order was arbitrary or ought otherwise to have been disregarded.

A more difficult point is the additional ground for reversal taken by the court below, that, the federal statutes omitting provision to the contrary, the death of Mrs. Aldredge, who, as landlord collected the rental overcharges but died before the trial, destroyed the cause of action of petitioners for triple damages and attorney fees under the common law maxim, actio personalis moritur cum persona. While this subject of survival enjoys the doubtful honor of being among the more confused in the law, our own opinion coincides with the conclusion of the Court of Civil Appeals.

No question is raised as to survival of petitioners' right to recover the bare overcharges, if properly established. But the matter of the additional claim included in 'three times the amount' of the overcharge and the attorney fees is something quite different.

The federal law is the ultimate source for determining what is or isn't properly a question of federal law. Looking therefore primarily to it, we conclude that the matter of survivorship of a federal statutory cause of action is a question of federal law, and not the law of Texas, though the latter is the forum and place where the cause of action arose. We, ourselves, have said that in a proceeding in our courts to collect a 'civil penalty' under the federal income tax laws, we would determine the meaning of a particular word in the statute by reference to federal decisions. Paddock v. Siemoneit, 147 Tex. 571, 218 S.W.2d 428, 7 A.L.R.2d 1062. But the federal decisions, including several made in the face of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, seem to carry the scope of federal authority well beyond the matter of mere interpretation of federal statutes into the field of 'consequences' thereof, of matters in which 'the desirability of a uniform rule is plain' and into 'those areas of judicial decision within which the policy of the law is so dominated by the sweep of federal statutes that legal relations which they affect must be deemed governed by federal law having its source in those statutes, rather than by local law.' See Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 575, 87 L.Ed. 838; Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 174, 63 S.Ct. 172, 87 L.Ed. 165; D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956; Deitrick v. Greaney, 309 U.S. 190, 60 S.Ct. 480, 84 L.Ed. 694; Board of Com'rs of Jackson County v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313; Awotin v. Atlas Exchange National Bank of Chicago, 295 U.S. 209, 55 S.Ct. 674, 79 L.Ed. 1393; Michigan Cent. R. Co v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417, Ann.Cas.1914C, 176. The court in Gerling (Martin's Adm'r) v....