Beggs v. Fite

• Decision Date: 16 June 1937
• Docket Number: No. 6894.,6894.
• Citation: 106 S.W.2d 1039
• Parties: BEGGS v. FITE et al.
• Court: Texas Supreme Court

Page 1039

106 S.W.2d 1039

BEGGS v. FITE et al.

No. 6894.

Supreme Court of Texas.

June 16, 1937.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Garnishment proceeding by George Beggs against Tina Brooker Fite and others, in which W. H. Slay and another intervened. A judgment for the garnishees was affirmed by the Court of Civil Appeals [79 S.W.(2d) 642], and plaintiff brings error.

Affirmed.

H. A. Turner, of Fort Worth, for plaintiff in error.

Slay & Simon and Thorp Andrews, all of Fort Worth, for defendants in error.

CRITZ, Justice.

This is a garnishment proceeding. In a way this suit is related to cause No. 6879, J. N. Brooker et al. v. W. T. Brooker et al., 106 S.W.(2d) 247, decided by this court on June 2, 1937 (opinion not yet reported [in State Report]).

It appears from the record that when the will of J. N. Brooker, deceased, was filed for probate in the county court of Tarrant county, Tex., a number of the heirs of J. N. Brooker, deceased, who were disinherited by the will, filed a contest to the application to probate. For the purposes of this opinion, we will assume that Tina Brooker, now Tina Brooker Fite, Alice Brooker, John Brooker, A. M. Scott, A G. Scott, Laura Morris, J. L. Scott, J. O. Scott, and Mrs. A. C. Weatherby personally entered into a written contract with the law firm of Slay & Simon, a partnership composed of W. H. Slay and U. M. Simon, to represent them as proponents to the probate of the J. N. Brooker will, and in regard to two deeds mentioned in the opinion in cause No. 6879, supra. By the terms of this contract Tina Brooker et al. personally agreed to pay Slay & Simon certain fees not necessary to here detail, except to say that $625 of the fees provided by this contract were paid by the J. N. Brooker estate before these proceedings were instituted.

After the happening of the above events, W. T. Brooker et al. withdrew their contest to the probate of the J. N. Brooker, deceased, will, and same was duly probated without opposition. After such probate Tina Brooker, who had been appointed temporary administratrix of the J. N. Brooker estate, made her final report, which was approved. Also, on September 16, 1932, the above-named parties, who had personally made the above-mentioned contract of employment with Slay & Simon, duly qualified as trustees and executors of the will of J. N. Brooker, deceased, by taking the required oath. The will exempted them from giving bond.

After the happening of the above events, W. T. Brooker et al., filed suit in the probate court of Tarrant county, Tex., pursuant to article 3433 et seq., R.C.S.1925, to annul and suspend the J. N. Brooker will. When this suit was filed, and about September 21, 1932, Slay & Simon, on the one side, and Tina Brooker et al. who had signed the first contract of employment with such law firm, on the other side, entered into a new contract. This new contract was oral, and was made with Tina Brooker et al. in their representative capacities as trustees and executors of the J. N. Brooker estate. In this contract it was expressly understood and agreed that the old written contract was done away with. It was further agreed that Tina Brooker et al. were each and all contracting as trustees and executors, and were binding themselves only as such, and that they were not contracting personally at all, or binding themselves personally in any way. In other words, the legal effect of the terms of this later contract was to bind the estate of J. N. Brooker, deceased, and also to bind the makers on the part of such estate in their representative capacities as trustees and executors of such estate only.

By the further terms of this contract of September 21, 1932, between Slay & Simon, attorneys, on the one side, and the trustees and executors, as such, of the J. N. Brooker estate and such estate, on the other side, it was agreed that Slay & Simon would represent the above estate in defending the J. N. Brooker will against the above-mentioned annulment proceedings in all courts, trial and appellate. It was further agreed that Slay & Simon were to receive no further fee for the trial in the county court, but, if such proceeding should be appealed, such attorneys would receive a total fee of $7,750, to be paid as follows: $1,250 cash upon appeal to the district court, and a like amount credited on an indebtedness due by Slay & Simon to the J. N. Brooker estate, and $2,625 in cash, and a like amount credited on such firm's indebtedness to the J. N. Brooker estate upon the beginning of the trial in the district court. Only the $2,625 part of the fee is here involved.

On October 29, 1932, after the annulment proceedings were filed, Tina Brooker was again appointed temporary administratrix of the J. N. Brooker estate. She immediately took charge of the properties and assets of such estate as such temporary administratrix, and was functioning in that capacity when the writs of garnishment here involved were served upon the garnishees named in such writs. By the order appointing her, Tina Brooker was clothed with authority to pay all demands against the J. N. Brooker estate.

The annulment case was tried in the county court and judgment there rendered sustaining the Brooker will in its entirety. The case was appealed to the district court of Tarrant county, Tex., and while it was being tried in that court George Beggs, plaintiff in error here, filed suit in the Forty-eighth district court of Tarrant county, Tex., against W. H. Slay and U. M. Simon, individually, for debt upon certain promissory notes owned and held by him, not necessary to here describe. While the case of Beggs v. Slay and Simon was pending in the above court, Beggs filed the following application for writ of garnishment (omitting formal parts):

"Now comes Geo. Beggs, the plaintiff in the cause of Geo. Beggs VS W. H. Slay and U. M. Simon, now pending in this Court, the file number of which is No. 4532-A, and applies for a Writ of Garnishment to issue to Tina Brooker, Alice Brooker, John Brooker, J. L. Scott, J. O. Scott, Arthur Scott, Laura Morris, A. G. Scott and Mrs. A. C. Weatherby; and for cause says:

"That on the 4th day of April, A.D.1933, plaintiff Geo. Beggs, sued W. H. Slay and U. M. Simon, defendants in said cause No. 4532-A, for debt due upon two certain promissory notes described in plaintiff's petition in said cause, to which reference is here made, the aggregate amount of the debt sued for being the sum of $2594.09, principal, interest and attorney's fees due on said two notes on the date of the filing of said suit, together with interest thereon from said date, at the rate of 10% per annum, and for costs of suit; that such indebtedness is just, due and unpaid, and that none of the defendants has, within his knowledge, property in his possession, within this State, subject to execution, sufficient to satisfy such debt.

"Plaintiff says that he has reason to believe, and does believe, that the garnishees, Tina Brooker and Alice Brooker, who are resident citizens of Tarrant County, Texas, and John Brooker, J. L. Scott, J. O. Scott, Arthur Scott, Laura Morris, and A. G. Scott, all of whom are resident citizens of Robertson County, Texas, and Mrs. A. C. Weatherby, who is a resident citizen of Mills County, Texas, are indebted to the defendants, or that they have in their hands effects belonging to the defendants.

"Plaintiff further says that the Writ of Garnishment applied for is not sued out to injure either the defendants or the garnishees.

                                         "Geo. Beggs."
                

Proper garnishment bond was also filed, and on April 4, 1933, writ of garnishment was duly issued, directed to Tina Brooker and Alice Brooker, personally. No effort was made to garnishee them in their official capacities. This writ was in usual statutory form, and was served upon Tina Brooker and Alice Brooker, individually, on the day it was issued.

On April 5, 1933, writ of garnishment was issued, directed to Mrs. A. C. Weatherby, personally. No effort was made to serve Mrs. Weatherby in her official capacity. This writ was also in usual statutory form, and was served upon Mrs. Weatherby on the 15th day of April, 1933.

On April 5, 1933, writ of garnishment was duly issued, directed to J....