Bray v. Clark

• Decision Date: 21 June 1928
• Docket Number: (No. 675.)
• Citation: 9 S.W.2d 203
• Parties: BRAY et ux. v. CLARK.
• Court: Texas Court of Appeals

9 S.W.2d 203

BRAY et ux. v. CLARK.

(No. 675.)

Court of Civil Appeals of Texas. Waco.

June 21, 1928.

Rehearing Granted in Part, Judgment Reformed and Affirmed July 14, 1928.

Motion for Rehearing Granted in Part, Judgment Affirmed in Part and Reversed and Remanded in Part September 20, 1928.

Motion for Rehearing Overruled September 27, 1928.

Appeal from District Court, Navarro County; Hawkins Scarborough, Judge.

Action by Mrs. Annie Clark against W. W. Bray and wife, who filed cross-complaints. From the judgment rendered, defendants appeal. Reversed in part with instructions, and affirmed in part.

H. E. Traylor and Callicutt & Upchurch, all of Corsicana, for appellants.

H. B. Daviss, of Corsicana, for appellee.

BARCUS, J.

Appellant Mrs. Bray is the daughter of appellee, Mrs. Clark. It appears that Mrs. Clark's husband died when her daughter, Mrs. Bray, was a small child. In 1909, a year or two after Mrs. Bray became of age, Mrs. Clark and Mrs. Bray, who was then Belle Clark, purchased a lot and house in Corsicana, in which they operated a boarding house. In 1910 said house and lot were sold for $1,000 cash, which they invested in another house and lot, the title to which was taken in the name of Mrs. Clark, and, in addition to the $1,000 paid in cash, Mrs. Clark executed her individual notes as part of the purchase price of said property for $450, which notes were afterwards paid. In 1911, about one year after the purchase of the second piece of property, Mrs. Clark and her daughter, Belle, now Mrs. Bray, moved into said house, and as per agreement contained in the statement of facts, continued in possession of and occupied said property from that date until after the filing of this suit. In 1917, Belle Clark married W. W. Bray, and it appears that during a large portion of the time since her marriage her husband has lived with her and Mrs. Clark in the property in controversy. During all these years a boarding house has been operated in said house — Mrs. Clark's contention being that she was the sole owner and manager thereof and that she employed her daughter, Mrs. Bray, to assist her; Mrs. Bray's contention being that she and her mother have been, during all these years, partners in the operation of said boarding house. In 1920, appellee, Mrs. Clark, conveyed a one-third interest in the house and lot to appellant Mrs. Bray. Appellee, Mrs. Clark, in this suit, seeks to recover judgment against the appellants for the title and possession of all of said house and lot, together with all the household and kitchen furnishings in said house except certain portions, undescribed, which she alleged belonged to appellant Mrs. Bray, and seeks a personal judgment against appellant W. W. Bray for certain sums of money which she claimed he owed her, and seeks to recover $5,000 for board which she claims he owes her for having taken care of him, his wife, Mrs. Bray, and their baby, for 10 years. Appellants contend that appellant Mrs. Bray is entitled to an undivided one-half interest in the real estate and one-half interest in the household and kitchen furnishings located in said house; and appellant W. W. Bray asked for judgment against appellee for certain sums of money which he claims to have advanced to her and additional sums which he paid in the way of improvements on the house; and appellants further sought judgment against appellee by reason of her having issued a writ of injunction against them, restraining them from occupying the house, and for defamation of character.

The cause was tried to the court, and resulted in a judgment originally being entered for appellee for two-thirds interest in the house and lot and two-thirds interest in the household and kitchen furniture, and a judgment refusing appellants a recovery on any of their cross-actions and for appellant Mrs. Bray for an undivided one-third interest in the house and lot and one-third interest in the household and kitchen furniture, and the property was ordered sold so that same could be divided. After an appeal was perfected, the trial court entered a corrected judgment, which has been brought to this court by a supplemental transcript, under the terms of which appellee was awarded two-thirds of the real estate and all of the household and kitchen furnishings, and was given judgment against W. W. Bray for the total sum of $1,210, and Mrs. Bray was given judgment for an undivided one-third interest in the real estate, which was ordered sold so that same could be divided, and appellants were denied any recovery on their cross-actions.

Appellants by various assignments and propositions contend that the trial court had no authority to correct its judgment and enter a different judgment from that originally entered, after the appeal had been perfected. We overrule these assignments. The rule seems to be well established that a trial court has a right at any time to correct any decree which it has entered and make it speak the real judgment as rendered by the court at the time. Texas Co. v. J. Y. Beall (Tex. Civ. App.) 3 S. W. (2d) 524, and authorities there cited.

Appellants complain of the action of the trial court in rendering judgment for appellee for all of the household and kitchen furnishings and fixtures. They contend that there is neither pleading nor proof to support this portion of the court's judgment. We sustain these assignments. The only pleading with reference to the household and kitchen furniture and fixtures is a general statement by appellants that they own one-half thereof, and a pleading by ...