O'Brien v. First State Bank & Trust Co.

• Decision Date: 26 April 1922
• Docket Number: (No. 6734.)
• Citation: 241 S.W. 556
• Parties: O'BRIEN v. FIRST STATE BANK & TRUST CO. OF TAYLOR.
• Court: Texas Court of Appeals

241 S.W. 556

O'BRIEN v. FIRST STATE BANK & TRUST CO. OF TAYLOR.

(No. 6734.)

Court of Civil Appeals of Texas. San Antonio.

April 26, 1922.

Rehearing Denied May 31, 1922.

Appeal from District Court, Williamson County; Ireland Graves, Judge.

Action by the First State Bank & Trust Company of Taylor against George C. O'Brien, administrator of the estate of Mary E. Henderson, deceased. From judgment for plaintiff, defendant appeals. Affirmed.

See, also, 239 S. W. 715.

Wilcox & Graves, of Georgetown, and Geo. C. O'Brien, of Beaumont, for appellant.

Critz & Lawhon, of Taylor, J. A. McNair, of Houston, and White, Cartledge & Wilcox, of Austin, for appellee.

SMITH, J.

The First State Bank & Trust Company of Taylor sued Geo. C. O'Brien, as administrator of the estate of Mary E. Henderson, deceased, to recover upon six promissory notes, amounting to $24,064.65, which were admittedly executed by Mrs. Henderson during her lifetime, and payable to and held by the bank. The administrator contested the suit upon the grounds that the notes were executed without consideration, as an accommodation to the bank, in response to and because of certain fraudulent representations, promises, and agreements made to Mrs. Henderson by the president of the bank, Robert J. Eckhardt, who was the son-in-law of Mrs. Henderson. The bank recovered upon a directed verdict, and the administrator has appealed, his appeal being predicated upon 34 assignments of error, of which the second, twentieth, twenty-first, twenty-second, twenty-fifth, twenty-seventh, and twenty-eighth are waived because not brought forward and briefed.

The third, fourth, fifth, sixth, seventh, and eighth assignments are based upon the complaint of appellant of the action of the trial court in sustaining appellee's exceptions and striking out certain allegations in appellant's trial petition. Neither the exceptions nor the pleadings stricken out in response thereto are set out in appellant's brief, in which the only reference to the exceptions and the stricken pleadings is that—

"The portions of the pleadings affected by the court's ruling and not read to the jury will be indicated in pencil marks in the transcript and the part marked [thus] was by the court excluded."

Obviously, this statement is wholly insufficient, and the assignment cannot be considered. The pleadings of the parties cover 51 pages in the record, of which appellant's trial answer constitutes 26 pages. This court is under no possible duty to search such record for clauses embraced in the brackets [—], for the purpose of locating the excluded pleadings, and, after locating the marked clauses, classify them, and, after classifying them, determine which assignment of error is directed at each particular one. The same symbol is used for the purpose of segregating clauses in the pleadings which relate to other assignments than those mentioned, which adds to the confusion, and renders it impossible, even if it were our duty, to adjust the assignments and the statements thereunder.

The thirteenth and fourteenth assignments are also objectionable, but for other reasons. Those assignments, which are grouped, are not propositions within themselves. They are not followed by propositions of law, as required by the old rules, to follow which is the simplest matter in the world, and to comply with which would have been considered sufficient by this court, without reference to any new rules. Nor are the new rules complied with by the submission in the first part of appellant's brief, or elsewhere, of propositions of law based on the assignments mentioned. An obvious attempt is made to comply with the new rules, but the only result was a simpler and more general specification of the same error complained of in the assignment, which was that the court erred in excluding certain testimony, the substance of which is set out in both the assignment and proposition relating thereto. While the ruling complained of is clearly specified, no proposition of law is set forth relating to the assignment, no reason is given why, or in what respect, or for what purpose, the ruling was error, or what principle of law was, in appellant's mind, contravened by the ruling. In other words, the brief contains the simple complaint that the court erred in excluding certain testimony, which is set out, but there appellant's complaint ends. That is not sufficient, and the assignments will be disregarded.

In his first assignment of error appellant complains of the action of the court below in sustaining an exception to the clause in the defendant's answer that "stated and declared to the said plaintiff's agent at such time that she was not bound by said notes, having received no consideration therefor, and the same having been given to said bank for its accommodation only, but that the plaintiff, its officer and agent, at such time represented to this decedent, and admitted to her, that she was not bound by said antecedent notes, but that the same were given without consideration, and for the accommodation of said bank alone." The statement under this assignment does not set out, in substance or otherwise, the exception which was directed at this pleading, and which was sustained, and no record reference is given us by appellant by which we may locate that exception. We gather from appellee's brief, however, that the substance of the exception was that the stricken pleading sought to plead evidence, rather than facts. Appellant, in his propositions and argument under this assignment, contends that the pleading was proper as bearing upon his contention that the notes involved were executed as an accommodation, and were without consideration. We are inclined to the opinion that the exception was good, but, in any event, it is apparent that the ruling complained of, if error, was harmless, since under other allegations in the petition all evidence admissible under the stricken pleading was admissible under the remaining pleadings. This assignment is overruled.

The main question in the case is raised by appellant in his eleventh assignment of error. Mrs. Vivian Henderson Umberger, who was the daughter of Mrs. M. E. Henderson, deceased, against whose estate the suit was brought, was put on the witness stand by appellant for the purpose of testifying to certain transactions and conversations alleged to have occurred between Mrs. Henderson and her son-in-law, R. J. Eckhardt, the then president of appellee bank, which transactions and conversations occurred prior to Mrs. Henderson's death, of course. The court excluded this testimony upon the objection of the bank that it would be in contravention of article 3690 of the statutes, which provides that:

"In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent." Vernon's Sayles' St.

It appears that Mrs. Umberger was one of 11 children surviving Mrs. Henderson, who died intestate, leaving a substantial estate which would descend in equal shares to her children under the law. Mrs. Umberger, being an heir at law of her mother, was constructively a party to the suit (Perdue v. Perdue [Tex. Civ. App.] 208 S. W. 353; Clark v. Briley [Tex. Civ. App.] 193 S. W. 421), and accordingly was prima facie incompetent to testify to conversations and transactions between her mother and third persons. Parks v. Caudle, 58 Tex. 216.

It also appears from the record that during the pendency of this suit, and before the trial thereof, Mrs. Umberger executed to one of her sisters a conveyance of her interest in the estate of her deceased mother for a recited consideration of $2,500, and appellant contends that by reason of this conveyance, Mrs. Umberger was rendered competent to testify to the conversations and transactions of her mother. In the absence of the jury Mrs. Umberger was examined at some length in regard to the conveyance to her sister for the purpose of determining the good faith of the transaction, and it was after hearing this evidence that the court excluded the testimony of the witness as to the statements and transactions of her mother. It appears from Mrs. Umberger's testimony that her sister, Mrs. Adams, consulted her about the purchase of her interest in the estate about the time of their mother's death, but no agreement was reached then or thereafter about the sale and purchase. No negotiations between the two were had leading up to the conveyance; no price was ever suggested or agreed upon between them. Mrs. Umberger went to the office of a Mr. Bland and signed the deed, which she had not theretofore seen, and the nature of which is not shown by the record here, whether a quitclaim, general warranty, or otherwise. When she first saw the deed it was in the hands of one of her brothers, and after executing it she left it with Bland and did not know how it got to Mrs. Adams, the grantee, who was not present at the time the instrument was executed. The administrator appellant O'Brien, was present, and for some reason admonished Mrs. Umberger that the sale and conveyance must be made in good faith. She did not receive anything at the time for executing the deed, but several days later she received a deposit slip for $2,500 on a bank at Port Arthur....