Bigleben v. Stevens

• Decision Date: 12 November 1953
• Docket Number: No. 12512,12512
• Parties: BIGLEBEN et al. v. STEVENS.
• Court: Texas Court of Appeals

Page 785

262 S.W.2d 785

BIGLEBEN et al. v. STEVENS.

No. 12512.

Court of Civil Appeals of Texas, San Antonio.

Nov. 12, 1953.

Rehearing Denied Dec. 9, 1953.

Patrick J. Horkin, Jr., Jerry D'Unger, Joe J. Alsup, Linton S. Savage, John Young, Corpus Christi, for appellants.

Luther E. Jones, Jr., Joe P. Hatchitt, Corpus Christi, Jerome S. Hafter, Greenville, Miss., for appellee.

NORVELL, Justice.

This is a suit to determine heirship. An application for the probate of an alleged holographic will was consolidated with such suit for the purpose of trial. The case was appealed from the county court to the district court, where it was tried to a jury and judgment rendered denying probate of the alleged will of the deceased, Marion Fisher Bigleben, and decreeing that the appellee, Velda Fisher Stevens, as the adopted daughter of Marion Fisher Bigleben, was her sole heir at law. There are two groups of appellants, namely, John M. Bigleben, who claims to be the surviving husband of Marion Fisher Bigleben and is the proponent of the disputed will, and Eugene Coleman, Joe Coleman, Henry Coleman, Kittie Holman (sometimes referred to in the transcript as Kitty Holeman or Kitty Coleman) and Rosalie Sanders, who claim to be cousins of the deceased. This latter group is referred to as the Coleman appellants.

The appellee filed a motion herein to dismiss the appeal of the Coleman appellants on the ground that the amended motion for new trial filed by them was not presented within the time prescribed by Rule 330(j) of the Texas Rules of Civil Procedure, and hence was overruled by operation of law thirty days after June 25, 1952, the date upon which the motion was filed. It is asserted that the sixty-day period of Rule 386, commenced to run on July 25th and expired on September 23rd, and that the transcript not having been filed until October 6th, was filed too late.

This motion was overruled by us and the case submitted and argued in regular order. We have again considered the motion to dismiss and adhere to our original decision upon the matter. Our former memorandum opinion, filed on November 5, 1952, is, however, withdrawn and we will herein set forth our reasons for overruling the motion.

The pertinent portion of Rule 330(j) reads as follows:

'All motions and amended motions for new trials must be presented within thirty (30) days after the original motion or amended motion is filed and must be determined without not exceeding forty-five (45) days after the original or amended motion is filed, unless by written agreement of the parties in the case, the decision of the motion is postponed to a later date.'

The transcript discloses that judgment was rendered on May 30, 1952. Within ten days thereafter, on June 7th, the Coleman appellants and the appellant John M. Bigleben both filed original motions for new trial. Amended motions were filed on June 25th, within twenty days after the original motions were filed. On August 8th, within forty-five days after the amended motions were filed, both were overruled by the court. Within sixty days thereafter, on October 6th, the transcript was filed in this Court.

No attack is made upon the appeal by Bigleben. This may be accounted for by the difference in the form of orders employed in overruling the motions involved. The Bigleben order follows:

'This the 8th day of August, 1952, came on to be heard the amended motion of John M. Bigleben for a new trial in the above entitled and numbered cause, and the original motion for new trial having been filed within the time required by law, and the court having granted leave of John M. Bigleben to file such amended motion for new trial, and such motion having been presented to the court in due time, manner and form, and with due notice, and it appearing to the court that such motion should be overruled, it is accordingly.

'Ordered, adjudged and decreed that the same be and it is hereby overruled; * * *.'

The Coleman order was somewhat shorter, and is as follows:

'Be it remembered, on this, the 8th day of August, 1952, came on in the above numbered and entitled matter, plaintiffs' Eugene Coleman, Joe Coleman, Henry Coleman, Kitty Holeman and Rosalie Sanders, amended motion for new trial, and the Court having heard said motion and duly considered the same, is of the opinion that same should be in all things overruled;

'It is therefore, ordered, adjudged and decreed by the Court that said motion be and the same is hereby in all things overruled, * * *.'

The Bigleben order expressly recites that the motion was 'presented to the court in due time, matter and form,' and we think that such presentation is implicit in the shorter Coleman order. In the absence of a recitation in the order or judgment to the contrary, it must be presumed that the motion upon which the court acted was duly presented and hence possessed of vitality and force when acted upon. 'The presumption is that the court which rendered the judgment did his duty. This implies, of course, that the court * * * acted within the limits of its authority and that the judgment itself is correct and valid.' 25 Tex.Jur. 831, Judgments, § 319.

We need not discuss certain affidavits filed herein relating to the matter of 'presentation' other than to say that the purport thereof is not entirely clear and, in any event, this Court would be extremely hesitant to dismiss and appeal properly supported by orders duly entered in the court below (and not attacked in that court by bill of exception or otherwise) solely upon the strength of ex parte affidavits. De Leon v. Texas Employers Ins. Ass'n, Tex.Civ.App., 159 S.W.2d 574. See, also, Williams v. Pitts, Chief Justice, Tex.Sup., 251 S.W.2d 148, in which it seems to have been recognized that a correction of an order of the trial court would have to be effected by proper order in the trial court (a nunc pro tunc order in this instance), rather than by an affidavit filed in the appellate court.

We regard the present case as being clearly distinguishable from Magnolia Petroleum Co. v. Klingeman, Tex.Civ.App., 242 S.W.2d 950, wherein it affirmatively appeared from the transcript that the judgment was rendered on May 2, 1951; that the original motion was filed on April 30, 1951, and hence was effective as of the date of judgment, Rule 306c; that the amended motion was not filed within twenty days of May 2, 1951, as required by Rule 330(k), but not until June 22, 1951 (leave to file this amendment was not formally granted until June 26, 1951); that the order purporting to overrule the amended motion for new trial was not rendered until June 26, 1951, which was long after forty-five days from the filing of the original motion for new trial (which had not been properly amended and was hence the only motion which ever possessed vitality) had expired.

The case is submitted on the merits by a record consisting of 185 pages of transcript and 2,417 pages of statement of facts. To follow all the ramifications of the testimony would serve no useful purpose and this opinion can best be confined within due bounds by considering the case from the controlling findings made by the jury, upon which a decree favorable to the appellee is based.

As to appellee's claim that she is an adopted daughter of Marion F. Bigleben, the jury found: (a) That there was an agreement between Marion F. Bigleben and Velda Fisher Stevens' natural mother, 'whereby Marion F. Bigleben agreed she would adopt Velda Fisher Stevens and make her her adopted daughter'; (b) that Marion F. Bigleben, pursuant to such agreement, reared and cared for Velda Fisher Stevens as her own child; and (c) that 'Velda Fisher Stevens rendered to Marion F. Bigleben the affections and duties of a child just as if she had been born to the said Marion F. Bigleben.'

As to the alleged holographic will submitted for probate by Bigleben, the jury found that such instrument had been mutilated and was not entirely in the handwriting of Marion F. Bigleben. These findings have support in the evidence and the trial court was clearly correct in refusing to admit the will to probate. This feature of the case need not be further noticed.

Similarly, under the jury's findings, Bigleben's claim to be the husband of Marion F. Bigleben must be rejected. Simpson v. Neely, Tex.Civ.App., 221 S.W.2d 303, wr. ref.; 28 Tex.Jur. 731, Marriage, § 33.

We further regard the objections raised by appellant Bigleben to the jurisdiction of the court below as being answered by the opinion rendered in the case of In re Greathouse's Estate, Tex.Civ.App., 184 S.W.2d 317. Other and further procedural matters complained of by Bigleben do not disclose a reversible error.

Both Bigleben and the Coleman appellants center their attack upon the jury's finding of an agreement to adopt Velda Fisher Stevens made by Marion F. Bigleben and the mother of the said Velda Fisher Stevens. It is asserted that there is no evidence to support this finding.

After a careful examination...