Brown v. Fleming

• Decision Date: 28 May 1919
• Docket Number: (No. 102-3227.),(No. 57-2772.)
• Citation: 212 S.W. 483
• Parties: BROWN v. FLEMING, Sheriff, et al. CAVITT et al. v. BEALL HARDWARE & IMPLEMENT CO.
• Court: Texas Supreme Court

212 S.W. 483

BROWN v. FLEMING, Sheriff, et al.

CAVITT et al. v. BEALL HARDWARE & IMPLEMENT CO.

(No. 57-2772.)

(No. 102-3227.)

Commission of Appeals of Texas, Section B.

May 28, 1919.

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

Suit by J. E. Brown, administrator, against S. S. Fleming, Sheriff, and others, and contest by the Beall Hardware & Implement Company of application to sell land to pay debts by J. F. Cavitt, administrator, and others. From judgment for plaintiff Brown in the first suit, defendants appealed to the Court of Civil Appeals, which reversed and remanded (178 S. W. 964), and plaintiff brings error. From judgment for the administrator and others in the second case, contestant appealed to the Court of Civil Appeals, which remanded the case, with instructions (204 S. W. 798), and the administrator and others bring error. In both cases, judgments of the Court of Civil Appeals and the trial court reversed, and both causes remanded, with instructions to dismiss the first suit, etc.

In Case No. 57-2772.

D. A. Kelley, of Waco, for plaintiff in error.

L. Aubrey, of Waco, and Neyland & Neyland, of Greenville, for defendants in error.

In Case No. 102-3227.

D. A. Kelley and Allan D. Sanford, both of Waco, for plaintiff in error.

Neyland & Neyland, of Greenville, Marshall Surratt, of Waco, for defendants in error.

McCLENDON, J.

The two causes mentioned in the caption were consolidated by order of the Supreme Court, after writs of error had been granted.

The cause first mentioned was a suit brought by J. E. Brown, in his capacity as administrator of the estate of C. R. Phillips, deceased, in the district court of McLennan county, against the sheriff of that county and Beall Hardware & Implement Company, to restrain a sale of eight acres of land belonging to the estate of C. R. Phillips, deceased, under an order of sale upon a judgment of the district court of Hunt county, in which judgment the hardware company had recovered a personal judgment against three of the heirs of C. R. Phillips, with foreclosure of an attachment lien levied upon the interest of said heirs upon the eight acres of land in question. The district court denied the injunction, and the Court of Civil Appeals of the Third District (178 S. W. 964) reversed the judgment of the district court, and remanded the cause to that court, with the instruction to dismiss the case on the ground that the district court of Hunt county alone had jurisdiction of the cause.

It appears from the record in the second case above mentioned, that subsequently to the rendition of judgment in the trial court in the injunction suit, the sale of the property under the Hunt county judgment has been proceeded with, and the land bought in by the hardware company. Under this state of the record, the relief prayed for by the plaintiff in the injunction suit cannot now be granted, as the sale has already taken place, and the correctness of the decisions of the trial court and the Court of Civil Appeals involve only moot questions, except in so far as the determination of costs is concerned.

Since the cases of Gordon v. State, 47 Tex. 208, and Laccoste v. Duffy, 49 Tex. 767, 30 Am. Rep. 122, to use the language of Chief Justice Roberts in the latter case:

"It has not been customary in this court to decide questions of importance after their decision has become useless, merely to ascertain who is liable for the cost. The amount of business of practical importance would forbid that the time of the court should be so occupied."

We believe the decision in that case has been uniformly followed. McWhorter v. Northcutt, 94 Tex. 86, 58 S. W. 720; Riggins v. Richards, 97 Tex. 526, 80 S. W. 524.

In the case of Bolton v. City of San Antonio, 4 Tex. Civ. App. 174, 23 S. W. 279, the same principle was applied to injunction cases. There the city of San Antonio and its officers were sought to be enjoined from issuing certain negotiable coupon bonds of the city, on the ground of their alleged invalidity. The trial court sustained a demurrer to the petition, and dismissed the suit. On motion for rehearing in the Court of Civil Appeals, it was admitted that, since the action of the trial court, the bonds had been issued. Following the case of Laccoste v. Duffy, above, the Court of Civil Appeals declined to consider the merits, and dismissed the case, the court saying:

"Whether rightfully or wrongfully done, it is useless for us now to undertake to determine, for appellees cannot now be restrained from doing that which they have already done. Should this cause be remanded to the trial court, upon its being made to appear that the bonds have been issued and sold, it could only dismiss it, or render judgment for appellees."

For other cases upon this question, see Michie's Texas Digest, vol. 1, pp. 365, 367, and Corpus Juris, vol. 4, pp. 1135, 1136, and note 28.

We, therefore, conclude that there is now no controversy, so far as the injunction suit is concerned, that can be determined by the Supreme Court.

The second case mentioned in the caption arose in the county court of McLennan county upon a contest filed by the hardware company to an application of the administrator to sell the land in question for the purpose of paying debts of the deceased. The Court of Civil Appeals remanded the case to the district court, with instructions to try the issue as to the present availability of certain personal property as assets in the hands of the administrator, before resorting to a sale of the real estate. 204 S. W. 798.

The record in this case shows the following facts:

C. R. Phillips died intestate on September 10, 1913; and on November 3d following J. E. Brown was appointed administrator of his estate by the county court of McLennan county. On November 23, 1913, the administrator filed an inventory, appraisement, and list of claims of the estate, listing, among other property, certain personal property, consisting of live stock and farming implements, appraised at $1,895 in the aggregate. As to this personal property, the inventory states:

"In making this inventory it is proper to state to the court that Earnest Phillips, a son of the deceased, claims to own the following items of personal property in the foregoing inventory."

This is followed by a list of the personal property referred to. This inventory was approved. On December 10, 1913, Earnest Phillips filed in the county court a petition seeking to have the administrator deliver this property to him, he claiming to be the owner thereof. Upon hearing of this petition, the court on January 17, 1914, adjudged the property to belong to Earnest Phillips, subject, however, to a mortgage in favor of the First National Bank of McGregor, and ordered it turned over by the administrator to Earnest Phillips. There was no appeal from this order. On April 3, 1914, the administrator Brown filed an application to sell the land in question, which appeared from the orders of the court and the several reports of the administrator to be the only property of the estate not converted into cash. It was also shown that the cash on hand was not sufficient to pay the debts of the estate. This application was contested by the hardware company as owner of the interest in the land of three of the heirs under the foreclosure above referred to. The pleadings upon this contest are rather voluminous, and we deem it unnecessary to notice them, further than to state that it was contended by the hardware company that the order finding that the personal property above referred to belonged to Earnest Phillips, and requiring the administrator to turn it over to him, was void; that this property still constituted an asset of the estate, and that the administrator should be required to make good the appraised value thereof, the result of which would be that there would be no necessity to sell the real estate. As we construe the pleadings of both parties, it was conceded that the administrator had complied with the order of the court, and that the personal property had been turned over to Earnest Phillips under said order, and was no longer in the custody of the administrator.

On February 14, 1916, upon hearing of the application to sell the real estate, the court held that the contest of the hardware company showed no sufficient grounds for setting aside the previous orders of the court had in the administration, sustained a general demurrer to the contest, granted the application of the administrator, and ordered the property sold. The hardware company appealed from this order to the district court, but before the matter was tried in that court the administrator Brown died, and J. F. Cavitt was appointed administrator de bonis non. Cavitt qualified and filed an inventory, appraisement, and list of claims showing that the only property which came into his hands as administrator was cash amounting to $79.14, of which $54.14 was balance in the hands of Brown at the time of his death. This inventory contains the following:

"All of the balance of the property originally belonging to the estate has been disposed of pursuant to the orders of this court in due course of administration by J. E. Brown, so far as the knowledge of the affiant extends."

No objection appears to have been made to this inventory.

The district court, upon hearing of the application for the sale of the real estate, held that the exceptions of the administrator, which were joined in by the First National Bank of McGregor, one of the chief creditors of the estate, were not well taken, and denied the application for sale of the real estate, and certified his ruling to the county court. From this judgment the administrator Cavitt and the bank appealed.

The Court of Civil Appeals of the Third District reversed the judgment of the district court, and remanded the cause, with instructions to try the issue as to the present availability of the personal property as...